Conditions of Initial Purchasers’ Obligations. The respective obligations of the several Initial Purchasers hereunder are subject to the accuracy, on and as of the date hereof and the Closing Date, of the representations and warranties of PPL Montana contained herein, to the accuracy of the statements of PPL Montana and its officers made in any certificates delivered pursuant hereto, to the performance by PPL Montana of its obligations hereunder, and to each of the following additional terms and conditions: (a) Each of the conditions set forth in Section 4 of each of the Participation Agreements shall have been satisfied in full. All certificates and opinions to be delivered therein shall also be delivered to the Initial Purchasers, Standard & Poor's Ratings Group ("S&P"), Moodx'x Xxxestors Service Inc. ("Moody's") and Fitcx XXXA Inc ("Fitch"). Each party to the Participation Agreement (other than PPL Montana) shall furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on the representations and warranties contained in the Participation Agreement, as though the Initial Purchasers were a party to the Participation Agreement. Each legal counsel which is delivering an opinion pursuant to Section 4(s) of the Participation Agreement shall address such opinion to the Initial Purchasers or furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on such opinions as though such opinions were addressed to the Initial Purchasers. (b) 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 Certificates in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (c) None of the Initial Purchasers shall have discovered and disclosed to PPL Montana 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 is material or omits to state any fact which is material and is required to be stated therein or is necessary to make the statements therein not misleading. (d) All limited liability company proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents and the Offering Memorandum, and all other legal matters relating to the Transaction Documents (e) Winthrop, Stimson, Putnxx & Xoberts, Orrick, Herrxxxxxx & Sutcliffe and Davix Xxxxxxx, Xxq., General Counsel of PPL Montana, shall have furnished to the Initial Purchasers their written opinion, as transaction counsel to PPL Montana, addressed to the Initial Purchasers and dated as of the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially to the aggregate effect set forth in Annex B hereto. (f) The Initial Purchasers shall have received from Lathxx & Watkxxx, xxunsel for the Initial Purchasers, such opinion or opinions, dated as of the Closing Date, with respect to such matters as the Initial Purchasers may reasonably require, and the Companies shall have furnished to such counsel such documents and information as they request for the purpose of enabling them to pass upon such matters. (g) All of the transactions contemplated by the Lease Transactions to be completed on or before the Closing Date shall have been consummated or shall be consummated concurrently with the transactions contemplated hereby, and the Initial Purchasers shall have received counterparts, conformed as executed, of the Operative Documents. (h) PPL Montana shall have furnished to the Initial Purchasers a letter (the "Initial Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the date hereof, in form and substance satisfactory to the Initial Purchasers, substantially to the effect set forth in Annex C hereto. (i) PPL Montana shall have furnished to the Initial Purchasers a letter (the "Bring-Down Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the Closing Date: (i) confirming that they are independent public accountants with respect to PPL Montana 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 (j) PPL Montana shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of its chief executive officer and its chief financial officer stating that: (i) such officers have carefully examined the Offering Memorandum; (ii) in their opinion, the Offering Memorandum, as of its date, (excluding Appendices A, B and C thereto) did not include any untrue statement of a material fact and did 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 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; (iii) as of the Closing Date, the representations and warranties of PPL Montana in this Agreement (including the representations and warranties of PPL Montana in the Participation Agreement which have been incorporated by reference herein) are true and correct in all material respects, PPL Montana 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 as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the financial position or results of operation of PPL Montana or any of its subsidiaries, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations or business of PPL Montana and its subsidiaries taken as a whole, except as set forth in the Offering Memorandum; (iv) in their opinion, the Projections prepared by R.W. Xxxx xxx based upon assumptions which are consistent in all material respects with the Operative Documents and the Transaction Documents and which, to the extent material for purposes of consideration of the Projections taken as a whole, are disclosed in the Offering Memorandum; in their opinion, the Projections are reasonable in light of the assumptions made therein; it is understood that, despite their good faith assumptions and reasonable beliefs (A) the assumptions on which the Projections are based are subject to significant uncertainties and contingencies, many of which are beyond the control of PPL Montana, (B) there can be no assurance that the (v) in their opinion, the information provided by PPL Montana to the Independent Engineer, Independent Market Consultant and the Independent Fuel Consultant, in the preparation of their reports set forth at Appendices A, B and C, respectively, to the Offering Memorandum is not incomplete or incorrect in any material respect; and (vi) the Tax Indemnity Agreement executed on the Closing Date is substantially in the form of the Tax Indemnity Agreement reviewed by counsel to the Initial Purchasers on July 10, 2000 and any changes, additions or amendments made thereto since July 10, 2000 will not result in a material detrimental effect on the Initial Purchasers. (k) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of PPL Montana. (l) The Pass Through Trust Agreement shall have been duly executed and delivered by PPL Montana and the Pass Through Trustee, and the Certificates shall have been duly executed, delivered and authenticated in accordance with the Pass Through Trust Agreement. (m) If any event shall have occurred prior to the Closing Date that requires PPL Montana under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, the Initial Purchasers shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Closing Date. (n) There shall not have occurred any invalidation of Rule 144A 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 Certificates as contemplated hereby. (o) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the member interests or long-term debt or any change, or any development involving a prospective (p) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Certificates; 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 Certificates. (q) The Equity Contribution Agreement related to each Lease Transaction among PPL Corporation, PPL Montana and the applicable Lease Indenture Trustee shall have been duly authorized, executed and delivered by the parties thereto and shall be in full force and effect. (r) Subsequent to the execution and delivery of this Agreement: (i) no downgrading shall have occurred in the rating accorded the Certificates or PPL Montana's 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 Certificates or PPL Montana's debt securities or preferred stock. (s) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on any such exchange or market by the Commission, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities of PPL Montana on any exchange or in the over-the-counter market shall have been suspended; (ii) a declaration of any moratorium on commercial banking activities by federal or New York state authorities; (iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war; or (iv) a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) the effect of which, in the case of this clause (iv), is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or the delivery of the Certificates on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto). (t) There shall exist at and as of the Closing Date no conditions that would constitute an event of default (or an event that with notice or the lapse of time, or both, would constitute an event of default) under the Facility Leases or, to PPL Montana's knowledge, Lessor Notes or the Certificates. (u) Subsequent to the execution and delivery of this Agreement, S&P shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates, (B) Moodx'x xxxll have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than Baa3 with respect to the Certificates and (C) Fitch shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates. (v) Each of the Independent Market Consultant, the Independent Fuel Consultant and the Independent Engineer shall have delivered to the Initial Purchasers a letter reaffirming the accuracy and completeness, as of the Closing Date, of the conclusions and findings of such firm contained in its final report in the Offering Memorandum. (w) PPL Montana shall have furnished to the Initial Purchasers: (i) a copy of the resolutions, certified by the Secretary or Assistant Secretary of PPL Montana as of the Closing Date, duly authorizing the execution, delivery and performance of the Transaction Documents and each other Operative Document to which it is a party and any other documents to be executed on or prior to the Closing Date by or on behalf of it in connection with the transactions contemplated thereby;
Appears in 1 contract
Samples: Purchase Agreement (PPL Montana LLC)
Conditions of Initial Purchasers’ Obligations. The respective obligations of the several Initial Purchasers hereunder are subject to the accuracy, when made and on and as of the date hereof and the Closing Date, of the representations and warranties of PPL Montana the Issuer contained herein, to the accuracy of the statements of PPL Montana and its officers made in any certificates delivered pursuant hereto, to the performance by PPL Montana the Issuer of its obligations hereunder, and to each of the following additional terms and conditions:
(a) Each of the conditions set forth in Section 4 of each of the Participation Agreements The Offering Memorandum shall have been satisfied in full. All certificates printed and opinions copies made available to be delivered therein shall also be delivered to the Initial Purchasersyou not later than 6:00 p.m., Standard & Poor's Ratings Group ("S&P")New York City time, Moodx'x Xxxestors Service Inc. ("Moody's") and Fitcx XXXA Inc ("Fitch"). Each party to the Participation Agreement (other than PPL Montana) shall furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on the representations and warranties contained in business day following the Participation date of this Agreement, or at such later date and time as though the Initial Purchasers were a party to the Participation Agreement. Each legal counsel which is delivering an opinion pursuant to Section 4(s) of the Participation Agreement shall address such opinion to the Initial Purchasers or furnish a letter to the Initial Purchasers indicating that the Initial Purchasers you may rely on such opinions as though such opinions were addressed to the Initial Purchasersapprove in writing.
(b) 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 Certificates in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) None of the Initial Purchasers shall not have discovered and disclosed to PPL Montana the Issuer on or prior to the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which which, in the opinion of Hogax & Xartxxx X.X.P., counsel for the Initial Purchasers, is material or omits to state any a fact which 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.
(dc) All limited liability company partnership proceedings and other legal matters incident to the authorization, form and validity of each of this Agreement, the Transaction other Operative Documents and the Offering Memorandum, and all other legal matters relating to this Agreement and the Transaction Documentstransactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Issuer shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(ed) Winthrop, Stimson, Putnxx Lathxx & Xoberts, Orrick, Herrxxxxxx & Sutcliffe and Davix Xxxxxxx, Xxq., General Counsel of PPL Montana, shall Xatkxxx xxxll have furnished to the Initial Purchasers their Purchasers, its written opinionopinion (based on the assumptions and subject to the exclusions contained therein), as transaction counsel to PPL Montanathe Issuer, addressed to the Initial Purchasers and dated as of the Closing Date, substantially as to the matters set forth in form and substance reasonably satisfactory Exhibit A hereto.
(e) Ballxxx Xxxxx Xxxxxxx & Xngersoll, LLP shall have furnished to the Initial Purchasers, substantially its written opinion (based on the assumptions and subject to the aggregate effect exclusions contained therein), as special Maryland counsel to the Issuer, addressed to the Initial Purchasers and dated the Closing Date, substantially as to the matters set forth in Annex Exhibit B hereto.
(f) The Initial Purchasers shall have received from Lathxx Hogax & WatkxxxXartxxx X.X.P., xxunsel counsel for the Initial Purchasers, such opinion or opinions, dated as of the Closing Date, with respect to such the issuance and sale of the Notes, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and the Companies Issuer shall have furnished to such counsel such documents and information as they reasonably request for the purpose of enabling them to pass upon such matters.
(g) All At the time of the transactions contemplated by the Lease Transactions to be completed on or before the Closing Date shall have been consummated or shall be consummated concurrently with the transactions contemplated herebyexecution of this Agreement, and the Initial Purchasers shall have received counterparts, conformed as executed, of the Operative Documents.
(h) PPL Montana shall have furnished to the Initial Purchasers from Ernst & Young LLP a letter (the "Initial Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the date hereofletter, in form and substance satisfactory to the Initial Purchasers, substantially to the effect set forth in Annex C hereto.
(i) PPL Montana shall have furnished to the Initial Purchasers a letter (the "Bring-Down Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the Closing Date:
date hereof (i) confirming that they are independent public accountants with respect to PPL Montana and its subsidiaries within the meaning of under Rule 101 of the American Institute of Certified Public Accountants' Code of Professional Conduct of the AICPA and its interpretations and rulings thereunder;
thereunder and (ii) stating, as of the date of the Bring-Down Letter 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 three business five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information (including pro forma financial information) and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings.
(h) 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 Issuer shall have furnished to the Initial Purchasers a letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent public accountants under Rule 101 of the American Institute of Certified Public Accountants' Code of Professional Conduct and its interpretations and rulings thereunder, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five days prior to the date of the Bringbring-Down Letterdown letter), that the conclusions and findings of such accountants firm with respect to the financial information (including pro forma financial information) and other matters covered by the Initial Letter are accurate; andinitial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(ji) PPL Montana The Issuer shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of the Chief Executive Officer, President or a Vice President of the General Partner on its chief executive officer behalf and its the chief financial officer of the General Partner stating that:
(iA) such officers The representations, warranties and agreements of the Issuer in Section 1 are true and correct as of the Closing Date; the Issuer has complied with all its agreements contained herein; and the conditions set forth in Sections 7(j) and 7(l) have been fulfilled; and
(B) They have carefully examined the Offering Memorandum;
(ii) Memorandum and, in their opinion, the Offering Memorandum, opinion (a) as of its date, (excluding Appendices A, B and C thereto) 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 in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, and (b) since the date of the such Offering Memorandum, Memorandum no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum so that and (c) except as reflected in or contemplated by the Offering Memorandum (as so amended or supplemented) would Memorandum, there shall 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;
(iii) as of the Closing Date, the representations and warranties of PPL Montana in this Agreement (including the representations and warranties of PPL Montana in the Participation Agreement which have been incorporated by reference herein) are true and correct in all material respects, PPL Montana has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder on or prior to since the Closing Date, and subsequent to the date respective dates as of which information is given in the Offering Memorandum, any material adverse change in the financial condition or in the results of operations, business affairs or business prospects of the Issuer and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (other than changes relating to the economy in general or the Issuer's industry in general and not specifically related to the Issuer).
(j) Neither the Issuer nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Offering Memorandum (i) any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum or (ii) since such date there shall not have been any change in the capital stock, Partnership Interests or long-term debt of the Issuer or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, business prospects, management, financial position, stockholders' or unitholders' equity, as applicable, or results of operations of the Issuer and its subsidiaries, otherwise than as set forth or contemplated in the Offering Memorandum (exclusive of any amendment or supplement theretothereto after the date hereof), there has been no material adverse change in the financial position or results effect of operation of PPL Montana or any of its subsidiaries, or any change, or any development including a prospective changewhich, in any such case described in clause (i) or affecting the condition (financial or otherwiseii), results of operations or business of PPL Montana and its subsidiaries taken as a wholeis, except as set forth in the Offering Memorandum;
(iv) in their opinion, the Projections prepared by R.W. Xxxx xxx based upon assumptions which are consistent in all material respects with the Operative Documents and the Transaction Documents and which, to the extent material for purposes of consideration of the Projections taken as a whole, are disclosed in the Offering Memorandum; in their opinion, the Projections are reasonable in light of the assumptions made therein; it is understood that, despite their good faith assumptions and reasonable beliefs (A) the assumptions on which the Projections are based are subject to significant uncertainties and contingencies, many of which are beyond the control of PPL Montana, (B) there can be no assurance that the
(v) in their opinion, the information provided by PPL Montana to the Independent Engineer, Independent Market Consultant and the Independent Fuel Consultant, in the preparation of their reports set forth at Appendices A, B and C, respectively, to the Offering Memorandum is not incomplete or incorrect in any material respect; and
(vi) the Tax Indemnity Agreement executed on the Closing Date is substantially in the form of the Tax Indemnity Agreement reviewed by counsel to the Initial Purchasers on July 10, 2000 and any changes, additions or amendments made thereto since July 10, 2000 will not result in a material detrimental effect on the Initial Purchasers.
(k) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of PPL Montana.
(l) The Pass Through Trust Agreement shall have been duly executed and delivered by PPL Montana and the Pass Through Trustee, and the Certificates shall have been duly executed, delivered and authenticated in accordance with the Pass Through Trust Agreement.
(m) If any event shall have occurred prior to the Closing Date that requires PPL Montana under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, the Initial Purchasers shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Closing Date.
(n) There shall not have occurred any invalidation of Rule 144A 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 Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the ability delivery of the Initial Purchasers to purchase, hold or effect resales of Notes being delivered on the Certificates as Closing Date on the terms and in the manner contemplated herebyin the Offering Memorandum.
(o) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the member interests or long-term debt or any change, or any development involving a prospective
(p) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Certificates; 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 Certificates.
(q) The Equity Contribution Agreement related to each Lease Transaction among PPL Corporation, PPL Montana and the applicable Lease Indenture Trustee shall have been duly authorized, executed and delivered by the parties thereto and shall be in full force and effect.
(r) Subsequent to the execution and delivery of this Agreement:
(i) no downgrading shall have occurred in the rating accorded the Certificates or PPL Montana's 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 Certificates or PPL Montana's debt securities or preferred stock.
(sk) 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, Exchange or the American Stock Exchange or in the over-the-counter market market, or trading in any securities of the Issuer on any exchange or in the over-the-counter market, shall have been suspended or limited, or minimum prices shall have been established on any such exchange or such 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 PPL Montana on any exchange or in the over-the-counter market shall have been suspended;
(ii) a declaration of any banking moratorium on commercial banking activities shall have been declared by federal Federal or New York state authorities;
, (iii) an outbreak or escalation of hostilities or a declaration by 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; 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) the effect of which, in the case of this clause (iv), isas to make it, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with market the Notes or to enforce contracts for the sale or the delivery of the Certificates on the terms and Notes in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto)Memorandum.
(tl) There shall exist at and as of On the Closing Date no conditions that would constitute an event of default (or an event that with notice or Date, the lapse of time, or both, would constitute an event of default) under the Facility Leases or, to PPL Montana's knowledge, Lessor Notes or the Certificates.
(u) Subsequent to the execution and delivery of this Agreement, S&P shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates, (B) Moodx'x xxxll have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than rated at least BBBby S&P and Baa3 with respect to the Certificates and (C) Fitch shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates.
(v) Each of the Independent Market Consultant, the Independent Fuel Consultant by Moody's and the Independent Engineer Issuer shall have delivered to the Initial Purchasers a letter reaffirming dated on or before the accuracy Closing Date from each such rating agency, or other evidence satisfactory to the Initial Purchasers, confirming that the Notes have such ratings; and completenesssubsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded debt securities of the Issuer by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no such organization shall have publicly announced that it has under surveillance or review, as with possible negative implications, its rating of the Issuer's debt securities.
(m) The Issuer shall have furnished a Secretary's Certificate in form and substance satisfactory to the Initial Purchasers.
(n) On the Closing Date, of the conclusions Registration Rights Agreement shall have been fully executed and findings of such firm contained in its final report in delivered by the Offering MemorandumIssuer.
(wo) PPL Montana Hogax & Xartxxx X.X.P. shall have been furnished with such other documents and opinions, in addition to those set forth above, as they may reasonably require for the purpose of enabling them to review or pass upon the matters referred to in this Agreement and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the representations, warranties or conditions herein contained.
(p) All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers:
(i) a copy of the resolutions, certified by the Secretary or Assistant Secretary of PPL Montana as of the Closing Date, duly authorizing the execution, delivery and performance of the Transaction Documents and each other Operative Document to which it is a party and any other documents to be executed on or prior to the Closing Date by or on behalf of it in connection with the transactions contemplated thereby;.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the several Initial Purchasers hereunder are subject to the accuracy, on and as of the date hereof and the Closing Date, accuracy of the representations and warranties on the part of PPL Montana contained hereinthe Company herein contained, to the accuracy receipt by the Representative of a letter on and dated the statements of PPL Montana date hereof from Xxxxxx Xxxxxxxx LLP substantially in the form attached hereto as Exhibit 4 and its officers made in any certificates delivered pursuant hereto, to the performance by PPL Montana of its obligations hereunder, and to each of the following additional terms and other conditions:
(a) Each of the conditions set forth in Section 4 of each of the Participation Agreements shall have been satisfied in full. All certificates and opinions to be delivered therein shall also be delivered to the Initial PurchasersThat, Standard & Poor's Ratings Group ("S&P"), Moodx'x Xxxestors Service Inc. ("Moody's") and Fitcx XXXA Inc ("Fitch"). Each party to the Participation Agreement (other than PPL Montana) shall furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on the representations and warranties contained in the Participation Agreement, as though the Initial Purchasers were a party to the Participation Agreement. Each legal counsel which is delivering an opinion pursuant to Section 4(s) of the Participation Agreement shall address such opinion to the Initial Purchasers or furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on such opinions as though such opinions were addressed to the Initial Purchasers.
(b) 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 Certificates in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) None of the Initial Purchasers shall have discovered and disclosed to PPL Montana 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 is material or omits to state any fact which is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(d) All limited liability company proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents and the Offering Memorandum, and all other legal matters relating to the Transaction Documents
(e) Winthrop, Stimson, Putnxx & Xoberts, Orrick, Herrxxxxxx & Sutcliffe and Davix Xxxxxxx, Xxq., General Counsel of PPL Montana, shall have furnished to the Initial Purchasers their written opinion, as transaction counsel to PPL Montana, addressed to the Initial Purchasers and dated as of the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially to the aggregate effect set forth in Annex B hereto.
(f) The Initial Purchasers shall have received from Lathxx & Watkxxx, xxunsel for the Initial Purchasers, such opinion or opinions, dated as of the Closing Date, with respect to such matters as the Initial Purchasers may reasonably require, and the Companies shall have furnished to such counsel such documents and information as they request for the purpose of enabling them to pass upon such matters.
(g) All of the transactions contemplated by the Lease Transactions to be completed on or before the Closing Date shall have been consummated or shall be consummated concurrently with the transactions contemplated hereby, and the Initial Purchasers shall have received counterparts, conformed as executed, of the Operative Documents.
(h) PPL Montana shall have furnished to the Initial Purchasers a letter (the "Initial Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the date hereof, in form and substance satisfactory to the Initial Purchasers, substantially to the effect set forth in Annex C hereto.
(i) PPL Montana shall have furnished to the Initial Purchasers a letter (the "Bring-Down Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the Closing Date:
(i) confirming that they are independent public accountants with respect to PPL Montana 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
(j) PPL Montana shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of its chief executive officer and its chief financial officer stating that:
(i) such officers have carefully examined the Offering Memorandum;
(ii) in their opinion, the Offering Memorandum, as of its date, (excluding Appendices A, B and C thereto) did not include any untrue statement of a material fact and did 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 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;
(iii) as of the Closing Date, the representations and warranties of PPL Montana in this Agreement (including the representations and warranties of PPL Montana in the Participation Agreement which have been incorporated by reference herein) are true and correct in all material respects, PPL Montana 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 as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the financial position or results of operation of PPL Montana or any of its subsidiaries, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations or business of PPL Montana and its subsidiaries taken as a whole, except as set forth in the Offering Memorandum;
(iv) in their opinion, the Projections prepared by R.W. Xxxx xxx based upon assumptions which are consistent in all material respects with the Operative Documents and the Transaction Documents and which, to the extent material for purposes of consideration of the Projections taken as a whole, are disclosed in the Offering Memorandum; in their opinion, the Projections are reasonable in light of the assumptions made therein; it is understood that, despite their good faith assumptions and reasonable beliefs (A) the assumptions on which the Projections are based are subject to significant uncertainties and contingencies, many of which are beyond the control of PPL Montana, (B) there can be no assurance that the
(v) in their opinion, the information provided by PPL Montana to the Independent Engineer, Independent Market Consultant and the Independent Fuel Consultant, in the preparation of their reports set forth at Appendices A, B and C, respectively, to the Offering Memorandum is not incomplete or incorrect in any material respect; and
(vi) the Tax Indemnity Agreement executed on the Closing Date is substantially in the form of the Tax Indemnity Agreement reviewed by counsel to the Initial Purchasers on July 10, 2000 and any changes, additions or amendments made thereto since July 10, 2000 will not result in a material detrimental effect on the Initial Purchasers.
(k) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of PPL Montana.
(l) The Pass Through Trust Agreement shall have been duly executed and delivered by PPL Montana and the Pass Through Trustee, and the Certificates shall have been duly executed, delivered and authenticated in accordance with the Pass Through Trust Agreement.
(m) If any event shall have occurred prior to the Closing Date that requires PPL Montana under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been preparedTime, the Initial Purchasers shall have been given a reasonable opportunity to comment thereonbe furnished the following opinions and letter, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Closing Date.
(n) There shall not have occurred any invalidation of Rule 144A 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 with such changes therein as may be agreed upon 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 Certificates as contemplated hereby.
(o) Subsequent to the execution Company and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the member interests or long-term debt or any change, or any development involving a prospective
(p) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Certificates; 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 Certificates.
(q) The Equity Contribution Agreement related to each Lease Transaction among PPL Corporation, PPL Montana and the applicable Lease Indenture Trustee shall have been duly authorized, executed and delivered by the parties thereto and shall be in full force and effect.
(r) Subsequent to the execution and delivery of this Agreement:
(i) no downgrading shall have occurred in the rating accorded the Certificates or PPL Montana's 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 Certificates or PPL Montana's debt securities or preferred stock.
(s) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on any such exchange or market by the Commission, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities of PPL Montana on any exchange or in the over-the-counter market shall have been suspended;
(ii) a declaration of any moratorium on commercial banking activities by federal or New York state authorities;
(iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war; or
(iv) a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) the effect of which, in the case of this clause (iv), is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or the delivery of the Certificates on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(t) There shall exist at and as of the Closing Date no conditions that would constitute an event of default (or an event that with notice or the lapse of time, or both, would constitute an event of default) under the Facility Leases or, to PPL Montana's knowledge, Lessor Notes or the Certificates.
(u) Subsequent to the execution and delivery of this Agreement, S&P shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates, (B) Moodx'x xxxll have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than Baa3 with respect to the Certificates and (C) Fitch shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates.
(v) Each of the Independent Market Consultant, the Independent Fuel Consultant and the Independent Engineer shall have delivered to the Initial Purchasers a letter reaffirming the accuracy and completeness, as of the Closing Date, of the conclusions and findings of such firm contained in its final report in the Offering Memorandum.
(w) PPL Montana shall have furnished to the Initial Purchasers:
(i) a copy Opinion of Xxxxxxxx Xxxxxxx LLP, of Atlanta, Georgia, counsel to the resolutionsCompany, certified by substantially in the Secretary or Assistant Secretary form attached hereto as Exhibit 1.
(ii) Opinion of PPL Montana Shearman & Sterling, of New York, New York, counsel to the Initial Purchasers, substantially in the form attached hereto as Exhibit 2.
(iii) Opinion of Xxxxxx & Xxxxxx LLP, of New York, New York, counsel to the Trustee, substantially in the form attached hereto as Exhibit 3.
(iv) A letter dated as of the Closing DateTime from Xxxxxx Xxxxxxxx LLP, duly authorizing substantially in the executionform attached hereto as Exhibit 4.
(v) Such documents relating to the Company’s corporate existence and its authorization and execution of this Agreement, delivery the Registration Rights Agreement, the Indenture and performance the Notes as the Representative may reasonably request.
(b) That, prior to the Closing Time, there shall have been no material adverse change in the business, properties or financial condition of the Transaction Documents Company from that set forth in or contemplated by the Offering Circular, and each other Operative Document that the Company shall, at the time of purchase, have delivered to which it is the Initial Purchasers a party certificate to such effect of an executive officer of the Company.
(c) That the Company and any other documents the Initial Purchasers shall have entered into the Registration Rights Agreement substantially in the form attached hereto as Exhibit 5.
(d) That the Company shall have performed such of its obligations under this Agreement as are to be executed on performed at or prior to the Closing Date Time by or on behalf of it in connection with the transactions contemplated thereby;terms hereof.
Appears in 1 contract
Samples: Purchase Agreement (Mirant Americas Generating LLC)
Conditions of Initial Purchasers’ Obligations. The respective obligations of the several Initial Purchasers hereunder are to purchase and pay for the Notes as provided herein, shall be subject to the accuracyaccuracy of the representations and warranties of the Company and the Guarantor herein contained, on and as of the date hereof and as of the Closing Date, of the representations and warranties of PPL Montana contained herein, to the accuracy absence from any certificates, opinions, written statements or letters furnished to the Initial Purchasers or to Latham & Watkins ("Inxxxxx Purcxxxxxx' Counsel") pursuant to this Section 7 of the statements of PPL Montana and its officers made in any certificates delivered pursuant heretomisstatement or omission, to the performance by PPL Montana each of the Company and the Guarantor of its obligations hereunder, and to each of the following additional terms and conditions:
(a) Each of a. At the conditions set forth in Section 4 of each of the Participation Agreements shall have been satisfied in full. All certificates and opinions to be delivered therein shall also be delivered to the Initial Purchasers, Standard & Poor's Ratings Group ("S&P"), Moodx'x Xxxestors Service Inc. ("Moody's") and Fitcx XXXA Inc ("Fitch"). Each party to the Participation Agreement (other than PPL Montana) shall furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on the representations and warranties contained in the Participation Agreement, as though the Initial Purchasers were a party to the Participation Agreement. Each legal counsel which is delivering an opinion pursuant to Section 4(s) of the Participation Agreement shall address such opinion to the Initial Purchasers or furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on such opinions as though such opinions were addressed to the Initial Purchasers.
(b) 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 Certificates in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) None of Closing Date the Initial Purchasers shall have discovered and disclosed to PPL Montana on or prior to received the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which is material or omits to state any fact which is material and is required to be stated therein or is necessary to make the statements therein not misleading.
opinion (d) All limited liability company proceedings and other legal matters incident to the authorization, in form and validity of each of the Transaction Documents and the Offering Memorandum, and all other legal matters relating to the Transaction Documents
(e) Winthrop, Stimson, Putnxx & Xoberts, Orrick, Herrxxxxxx & Sutcliffe and Davix Xxxxxxx, Xxq., General Counsel of PPL Montana, shall have furnished substance satisfactory to the Initial Purchasers their written opinionand Initial Purchasers' Counsel) of Akin, as transaction counsel to PPL MontanaGump, Strauss Hauer & Feld, L.X.X., xoxxxxx fox xxe Company and the Guarantor, addressed to the Initial Purchasers and dated as of the Closing Date, substantially to the effect set forth in Exhibit C hereto. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of New York.
b. At the Closing Date the Initial Purchasers shall have received the opinion (in formand substance satisfactory to the Initial Purchasers and Initial Purchasers' Counsel) of Hoffman Sutterfield Ensexxx, xxuxxxx xxx xxx Xxxxxxy and the Guarantor, addressed to the Initial Purchasers and dated the Closing Date, substantially to the effect set forth in Exhibit D hereto. In providing such opinion, such counsel shall opine as to the federal laws of the United States and the laws of the State of Louisiana.
c. All proceedings taken in connection with the sale of the Notes as herein contemplated shall be satisfactory in form and substance reasonably satisfactory to the Initial Purchasers and to Initial Purchasers' Counsel, substantially to and the aggregate effect set forth in Annex B hereto.
(f) The Initial Purchasers shall have received from Lathxx & Watkxxx, xxunsel for the said Initial Purchasers, such opinion or opinions' Counsel a favorable opinion, dated as of the Closing Date, Date with respect to the issuance and sale of the Notes, the Offering Memorandum and such other related matters as the Initial Purchasers may reasonably require, and the Companies Company shall have furnished to such counsel Initial Purchasers' Counsel such documents and information as they request for the purpose of enabling them to pass upon such matters.
(g) All of the transactions contemplated by the Lease Transactions to be completed on or before . At the Closing Date shall have been consummated or shall be consummated concurrently with the transactions contemplated herebyDate, and the Initial Purchasers shall have received counterpartsfrom Phelps Dunbar, conformed L.L.P. a xxxxxxbxx xxxnion dated the Closing Date with respect to the Bossier Riverboat Mortgage (as executed, defined in the Indenture) and the Crescent City Riverboat Mortgage (as defined in the Indenture) and the remaining term of the Operative DocumentsCompany's Louisiana gaming license in the event the voters in the Louisiana Referendum (as defined in the Offering Memorandum) do not approve the continuation of riverboat gaming in Bossier Parish or Caddo Parish, Louisiana.
(h) PPL Montana shall have furnished to d. At the Closing Date the Initial Purchasers a letter (the "Initial Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the date hereof, in form and substance satisfactory to the Initial Purchasers, substantially to the effect set forth in Annex C hereto.
(i) PPL Montana shall have furnished to received a certificate of the Initial Purchasers a letter (Chief Executive Officer and Chief Financial Officer of the "Bring-Down Letter") of PricewaterhouseCoopers LLPCompany and the Guarantor, addressed to the Initial Purchasers and dated the Closing Date:
, to the effect that (i) confirming that they are independent public accountants with respect to PPL Montana 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 hereof and as of the Bring-Down Letter Closing Date, the representations and warranties of the Company and the Guarantor set forth in Section 2 hereof are accurate, (orii) as of the Closing Date, with respect the obligations of the Company to matters involving changes be performed hereunder on or developments since prior thereto have been duly performed, (iii) subsequent to the respective dates as of which specified financial information is given in the Offering Memorandum, the Company has not 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) each signer of such certificate has examined the Offering Memorandum and that (A) 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
(j) PPL Montana shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of its chief executive officer and its chief financial officer stating that:
(i) such officers have carefully examined the Offering Memorandum;
(ii) in their opinion, the Offering Memorandum, as of its date, (excluding Appendices A, B and C thereto) did Memorandum does not include any contain an untrue statement of a material fact and did 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 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;
misleading and (iiiB) as of the Closing Date, the representations and warranties of PPL Montana in this Agreement (including the representations and warranties of PPL Montana in the Participation Agreement which have been incorporated by reference herein) are true and correct in all material respects, PPL Montana 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 since the date as of which information is given in the Offering Memorandum (exclusive no event has occurred as a result of any amendment which it is necessary to amend or supplement thereto)the Offering Memorandum in order to make the statements therein, there has been no material adverse change in the financial position or results of operation of PPL Montana or any of its subsidiaries, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations or business of PPL Montana and its subsidiaries taken as a whole, except as set forth in the Offering Memorandum;
(iv) in their opinion, the Projections prepared by R.W. Xxxx xxx based upon assumptions which are consistent in all material respects with the Operative Documents and the Transaction Documents and which, to the extent material for purposes of consideration of the Projections taken as a whole, are disclosed in the Offering Memorandum; in their opinion, the Projections are reasonable in light of the assumptions made therein; it is understood thatcircumstances under which they were made, despite their good faith assumptions not misleading and reasonable beliefs (A) the assumptions on which the Projections are based are subject to significant uncertainties and contingencies, many of which are beyond the control of PPL Montana, (B) there can be no assurance that the
(v) in their opinion, the information provided by PPL Montana to the Independent Engineer, Independent Market Consultant and the Independent Fuel Consultant, in the preparation of their reports set forth at Appendices A, B and C, respectively, to the Offering Memorandum is not incomplete or incorrect in any material respect; and
(vi) the Tax Indemnity Agreement executed on the Closing Date is substantially in the form of the Tax Indemnity Agreement reviewed by counsel to the Initial Purchasers on July 10, 2000 and any changes, additions or amendments made thereto since July 10, 2000 will not result in a material detrimental effect on the Initial Purchasers.
(k) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of PPL Montana.
(l) The Pass Through Trust Agreement shall have been duly executed and delivered by PPL Montana and the Pass Through Trustee, and the Certificates shall have been duly executed, delivered and authenticated in accordance with the Pass Through Trust Agreement.
(m) If any event shall have occurred prior to the Closing Date that requires PPL Montana under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, the Initial Purchasers shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Closing Date.
(n) There shall not have occurred any invalidation of Rule 144A 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 Certificates as contemplated hereby.
(o) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the member interests or long-term debt or any change, or any development involving a prospective
(p) No 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 or body which would, as of the Closing Date, prevent have a Material Adverse Effect; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the issuance or sale best knowledge of each of the CertificatesCompany and the Guarantor, threatened against, the Company 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 injunctionstop order preventing the use of the Offering Memorandum, restraining or any amendment or supplement thereto or any order or order asserting that any of any other nature the transactions contemplated by any federal or state court this Agreement are subject to the registration requirements of competent jurisdiction the Securities Act shall have been issued issued.
e. At the time this Agreement is executed and at the Closing Date, you shall have received a comfort letter from Arthur Andersen, LLP, xxxxxxndxxx xxxountants for the Company, dated, respectively, as of the date of this Agreement and as of the Closing Date which would prevent Date, addressed to the issuance or sale of Initial Purchasers in form and substance satisfactory to the CertificatesInitial Purchasers.
(q) The Equity Contribution Agreement related f. Prior to each Lease Transaction among PPL Corporationthe Closing Date, PPL Montana the Company shall have furnished to the Initial Purchasers or the Initial Purchasers' Counsel such further information, certificates and documents as the applicable Lease Indenture Trustee Initial Purchasers or the Initial Purchasers' Counsel may reasonably request.
g. At the Closing Date, the Notes shall have been duly authorizedapproved for quotation in the PORTAL market.
h. The Company, to the extent applicable, the Guarantor and each of the other parties thereto shall have executed and delivered by the parties thereto Transaction Documents and the Initial Purchasers shall have received fully executed copies thereof. The Transaction Documents shall be in full force and effect.
(r) Subsequent to the execution and delivery of this Agreement:
(i) no downgrading . The Company shall have occurred received the requisite governmental and regulatory approval in the rating accorded the Certificates or PPL Montana's 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 connection with positive implications of a possible upgrading), its rating of the Certificates or PPL Montana's debt securities or preferred stock.
(s) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on any such exchange or market by the Commission, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities of PPL Montana on any exchange or in the over-the-counter market shall have been suspended;
(ii) a declaration of any moratorium on commercial banking activities by federal or New York state authorities;
(iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war; or
(iv) a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) the effect of which, in the case of this clause (iv), is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or the delivery of the Certificates on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(t) There shall exist at and as of the Closing Date no conditions that would constitute an event of default (or an event that with notice or the lapse of time, or both, would constitute an event of default) under the Facility Leases or, to PPL Montana's knowledge, Lessor Notes or the Certificates.
(u) Subsequent to the execution and delivery of this Agreement, S&P shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates, (B) Moodx'x xxxll have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than Baa3 with respect to the Certificates and (C) Fitch shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates.
(v) Each of the Independent Market Consultant, the Independent Fuel Consultant and the Independent Engineer shall have delivered to the Initial Purchasers a letter reaffirming the accuracy and completeness, as of the Closing Date, of the conclusions and findings of such firm contained in its final report in the Offering Memorandum.
(w) PPL Montana shall have furnished to the Initial Purchasers:
(i) a copy of the resolutions, certified by the Secretary or Assistant Secretary of PPL Montana as of the Closing Date, duly authorizing the execution, delivery and performance each of the Transaction Documents and each other Operative Document to which it is a party and any other documents the transactions contemplated by the Offering Memorandum to be executed completed on or prior to before the Closing Date.
i. The Initial Purchasers shall have received (i) certificates of the Secretaries of the Company and the Guarantor, dated the Closing Date by or on behalf of it and in connection form and substance satisfactory to the Initial Purchasers, certifying as true, accurate and complete, the by-laws, resolutions with respect to the transactions contemplated thereby;herein and incumbency of certain officers; and (ii) certified Certificates or Articles of Incorporation issued as of a recent date by the Secretary of State of the state of incorporation of the Company and the Guarantor; and (iii) appropriate certificates of qualification to do business and of good standing, issued on a recent date by the Secretary of State of each jurisdiction, if any, in which the failure of the Company or the Guarantor, as the case may be, to be qualified to do business would have a Material Adverse Effect.
j. On the Closing Date, the Initial Purchasers 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 chief financial officer of each of the Company and the Guarantor substantially in the form previously approved by the Initial Purchasers.
k. Counsel for the Initial Purchasers shall have been furnished with such documents as are necessary to confirm that there are no liens against any of the personal or real property of the Company or the Guarantor unless such liens are permitted under the Indenture or have otherwise been approved by the Initial Purchasers.
1. The Trustee shall have received (i) a certificate of insurance demonstrating insurance coverage of types, in amounts, with insurers and with other terms required by the terms of the Transaction Documents, (ii) executed copies of each UCC-I financing statement signed y t Company and the Guarantor, naming the Trustee as secured party and filed in such jurisdictions as the Initial Purchasers may reasonably require, and (iii) to the extent required by the Transaction Documents, the original stock certificates, promissory notes and other instruments pledged to the Trustee pursuant to the Transaction Documents, together with undated stock powers or endorsements duly executed in blank in connection therewith.
m. All documents and agreements shall have been filed, and other actions shall have been taken, as may be required to perfect the Security Interests of the Trustee in the Collateral of the Company and the Guarantor, and to accord the Trustee the priorities over other creditors of either the Company or the Guarantor as contemplated by the Offering Memorandum and the Transaction Documents.
n. The Trustee shall have received irrevocable commitments for title insurance from Louisiana Title Company, in a form and substance reasonably satisfactory to the Initial Purchasers, subject only to Liens permitted under the Indenture. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to you or to the Initial Purchasers' Counsel pursuant to this Section 7 shall not be reasonably satisfactory in form and substance to the Initial Purchasers and to the Initial Purchasers' Counsel, all obligations of the Initial Purchasers hereunder may be canceled by you at, or at any time prior to, the Closing Date. Notice or such cancellation shall be given to the Company in writing, or by telephone, telex or telegraph, confirmed in writing.
Appears in 1 contract
Samples: Purchase Agreement (Casino Magic of Louisiana Corp)
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the several Initial Purchasers hereunder are subject to the accuracy, on and as of the date hereof and the Closing Date, accuracy of the representations and warranties on the part of PPL Montana contained hereinthe Company herein contained, to the accuracy receipt by the Representative of a letter on and dated the statements of PPL Montana date hereof from Xxxxxx Xxxxxxxx LLP substantially in the form attached hereto as Exhibit 4 and its officers made in any certificates delivered pursuant hereto, to the performance by PPL Montana of its obligations hereunder, and to each of the following additional terms and other conditions:
(a) Each of the conditions set forth in Section 4 of each of the Participation Agreements shall have been satisfied in full. All certificates and opinions to be delivered therein shall also be delivered to the Initial PurchasersThat, Standard & Poor's Ratings Group ("S&P"), Moodx'x Xxxestors Service Inc. ("Moody's") and Fitcx XXXA Inc ("Fitch"). Each party to the Participation Agreement (other than PPL Montana) shall furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on the representations and warranties contained in the Participation Agreement, as though the Initial Purchasers were a party to the Participation Agreement. Each legal counsel which is delivering an opinion pursuant to Section 4(s) of the Participation Agreement shall address such opinion to the Initial Purchasers or furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on such opinions as though such opinions were addressed to the Initial Purchasers.
(b) 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 Certificates in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) None of the Initial Purchasers shall have discovered and disclosed to PPL Montana 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 is material or omits to state any fact which is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(d) All limited liability company proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents and the Offering Memorandum, and all other legal matters relating to the Transaction Documents
(e) Winthrop, Stimson, Putnxx & Xoberts, Orrick, Herrxxxxxx & Sutcliffe and Davix Xxxxxxx, Xxq., General Counsel of PPL Montana, shall have furnished to the Initial Purchasers their written opinion, as transaction counsel to PPL Montana, addressed to the Initial Purchasers and dated as of the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially to the aggregate effect set forth in Annex B hereto.
(f) The Initial Purchasers shall have received from Lathxx & Watkxxx, xxunsel for the Initial Purchasers, such opinion or opinions, dated as of the Closing Date, with respect to such matters as the Initial Purchasers may reasonably require, and the Companies shall have furnished to such counsel such documents and information as they request for the purpose of enabling them to pass upon such matters.
(g) All of the transactions contemplated by the Lease Transactions to be completed on or before the Closing Date shall have been consummated or shall be consummated concurrently with the transactions contemplated hereby, and the Initial Purchasers shall have received counterparts, conformed as executed, of the Operative Documents.
(h) PPL Montana shall have furnished to the Initial Purchasers a letter (the "Initial Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the date hereof, in form and substance satisfactory to the Initial Purchasers, substantially to the effect set forth in Annex C hereto.
(i) PPL Montana shall have furnished to the Initial Purchasers a letter (the "Bring-Down Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the Closing Date:
(i) confirming that they are independent public accountants with respect to PPL Montana 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
(j) PPL Montana shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of its chief executive officer and its chief financial officer stating that:
(i) such officers have carefully examined the Offering Memorandum;
(ii) in their opinion, the Offering Memorandum, as of its date, (excluding Appendices A, B and C thereto) did not include any untrue statement of a material fact and did 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 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;
(iii) as of the Closing Date, the representations and warranties of PPL Montana in this Agreement (including the representations and warranties of PPL Montana in the Participation Agreement which have been incorporated by reference herein) are true and correct in all material respects, PPL Montana 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 as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the financial position or results of operation of PPL Montana or any of its subsidiaries, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations or business of PPL Montana and its subsidiaries taken as a whole, except as set forth in the Offering Memorandum;
(iv) in their opinion, the Projections prepared by R.W. Xxxx xxx based upon assumptions which are consistent in all material respects with the Operative Documents and the Transaction Documents and which, to the extent material for purposes of consideration of the Projections taken as a whole, are disclosed in the Offering Memorandum; in their opinion, the Projections are reasonable in light of the assumptions made therein; it is understood that, despite their good faith assumptions and reasonable beliefs (A) the assumptions on which the Projections are based are subject to significant uncertainties and contingencies, many of which are beyond the control of PPL Montana, (B) there can be no assurance that the
(v) in their opinion, the information provided by PPL Montana to the Independent Engineer, Independent Market Consultant and the Independent Fuel Consultant, in the preparation of their reports set forth at Appendices A, B and C, respectively, to the Offering Memorandum is not incomplete or incorrect in any material respect; and
(vi) the Tax Indemnity Agreement executed on the Closing Date is substantially in the form of the Tax Indemnity Agreement reviewed by counsel to the Initial Purchasers on July 10, 2000 and any changes, additions or amendments made thereto since July 10, 2000 will not result in a material detrimental effect on the Initial Purchasers.
(k) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of PPL Montana.
(l) The Pass Through Trust Agreement shall have been duly executed and delivered by PPL Montana and the Pass Through Trustee, and the Certificates shall have been duly executed, delivered and authenticated in accordance with the Pass Through Trust Agreement.
(m) If any event shall have occurred prior to the Closing Date that requires PPL Montana under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been preparedTime, the Initial Purchasers shall have been given a reasonable opportunity to comment thereonbe furnished the following opinions and letter, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Closing Date.
(n) There shall not have occurred any invalidation of Rule 144A 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 with such changes therein as may be agreed upon 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 Certificates as contemplated hereby.
(o) Subsequent to the execution Company and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the member interests or long-term debt or any change, or any development involving a prospective
(p) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Certificates; 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 Certificates.
(q) The Equity Contribution Agreement related to each Lease Transaction among PPL Corporation, PPL Montana and the applicable Lease Indenture Trustee shall have been duly authorized, executed and delivered by the parties thereto and shall be in full force and effect.
(r) Subsequent to the execution and delivery of this Agreement:
(i) no downgrading shall have occurred in the rating accorded the Certificates or PPL Montana's 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 Certificates or PPL Montana's debt securities or preferred stock.
(s) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on any such exchange or market by the Commission, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities of PPL Montana on any exchange or in the over-the-counter market shall have been suspended;
(ii) a declaration of any moratorium on commercial banking activities by federal or New York state authorities;
(iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war; or
(iv) a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) the effect of which, in the case of this clause (iv), is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or the delivery of the Certificates on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(t) There shall exist at and as of the Closing Date no conditions that would constitute an event of default (or an event that with notice or the lapse of time, or both, would constitute an event of default) under the Facility Leases or, to PPL Montana's knowledge, Lessor Notes or the Certificates.
(u) Subsequent to the execution and delivery of this Agreement, S&P shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates, (B) Moodx'x xxxll have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than Baa3 with respect to the Certificates and (C) Fitch shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates.
(v) Each of the Independent Market Consultant, the Independent Fuel Consultant and the Independent Engineer shall have delivered to the Initial Purchasers a letter reaffirming the accuracy and completeness, as of the Closing Date, of the conclusions and findings of such firm contained in its final report in the Offering Memorandum.
(w) PPL Montana shall have furnished to the Initial Purchasers:
(i) a copy Opinion of Xxxxxxxx Xxxxxxx LLP, of Atlanta, Georgia, counsel to the resolutionsCompany, certified by substantially in the Secretary or Assistant Secretary form attached hereto as Exhibit 1.
(ii) Opinion of PPL Montana Xxxxxxxx & Xxxxxxxx, of New York, New York, counsel to the Initial Purchasers, substantially in the form attached hereto as Exhibit 2.
(iii) Opinion of Xxxxxx & Xxxxxx LLP, of New York, New York, counsel to the Trustee, substantially in the form attached hereto as Exhibit 3.
(iv) A letter dated as of the Closing DateTime from Xxxxxx Xxxxxxxx LLP, duly authorizing substantially in the executionform attached hereto as Exhibit 4.
(v) Such documents relating to the Company's corporate existence and its authorization and execution of this Agreement, delivery the Registration Rights Agreement, the Indenture and performance the Notes as the Representative may reasonably request.
(b) That, prior to the Closing Time, there shall have been no material adverse change in the business, properties or financial condition of the Transaction Documents Company from that set forth in or contemplated by the Offering Circular, and each other Operative Document that the Company shall, at the time of purchase, have delivered to which it is the Initial Purchasers a party certificate to such effect of an executive officer of the Company.
(c) That the Company and any other documents the Initial Purchasers shall have entered into the Registration Rights Agreement substantially in the form attached hereto as Exhibit 5.
(d) That the Company shall have performed such of its obligations under this Agreement as are to be executed on performed at or prior to the Closing Date Time by or the terms hereof.
(e) That each of X.X. Xxxx, Inc. (the "Independent Technical Consultant") and PA Consulting Group (the "Independent Market Consultant") shall have delivered to the Company and the Initial Purchasers a letter dated the Closing Time (i) consenting to the inclusion of its respective report in the Offering Circular, and (ii) confirming that since the date of such report, based solely on behalf its inquiries of the Company as to whether there has been any material change in the information provided to it by the Company, nothing has come to its attention that causes it to believe that its opinions set forth in connection with the transactions contemplated thereby;Offering Circular were not correct.
Appears in 1 contract
Samples: Purchase Agreement (Mirant Americas Generating Inc)
Conditions of Initial Purchasers’ Obligations. The respective Your obligations of to purchase and pay for the several Initial Purchasers hereunder are Bonds shall be subject to the accuracy, accuracy on and as of the date hereof and on the Closing Date, Date of the representations and warranties made herein on the part of PPL Montana contained herein, the Company and of any certificates furnished by the Company on the Closing Date and to the accuracy of the statements of PPL Montana and its officers made in any certificates delivered pursuant hereto, to the performance by PPL Montana of its obligations hereunder, and to each of the following additional terms and conditions:
(a) Each of At the conditions set forth in Section 4 of each of the Participation Agreements Closing Date, there shall have been satisfied issued and there shall be in full. All certificates full force and opinions to be delivered therein shall also be delivered effect, to the Initial Purchasersextent legally required for the issuance and sale of the Bonds, Standard & Poor's Ratings Group an order of the Commission under the Public Utility Holding Company Act of 1935 (the "S&P"), Moodx'x Xxxestors Service Inc. ("Moody'sHolding Company Act") authorizing the issuance and Fitcx XXXA Inc ("Fitch"). Each party to sale of the Participation Agreement (other than PPL Montana) shall furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely Bonds on the representations and warranties contained in the Participation terms set forth in, or contemplated by, this Purchase Agreement, as though the Initial Purchasers were a party to the Participation Agreement. Each legal counsel which is delivering an opinion pursuant to Section 4(s) of the Participation Agreement shall address such opinion to the Initial Purchasers or furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on such opinions as though such opinions were addressed to the Initial Purchasers.
(b) The Offering Memorandum (and any amendments or supplements thereto) At the Closing Date, you shall have been printed received from Laurence M. Hamric, Esq., Associate Xxxxxxx Xxxxxxx-Xxxporate and copies distributed to Securities of Entergy Services, Inc. and Thelen Reid & Priest LLP opinions, dated the Closxxx Xxxe, substantially in the forms set forth in Exhibits A and B hereto, respectively, (i) with such changes therein as may be agreed upon by the Company and you with the approval of Counsel for the Initial Purchasers as promptly as practicable on or following Purchaser, and (ii) if 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 Certificates in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or Offering Circular shall be pending or threatenedsupplemented after being furnished to you for use in offering the Bonds, with changes therein to reflect such supplementation.
(c) None of the Initial Purchasers shall have discovered and disclosed to PPL Montana 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 is material or omits to state any fact which is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(d) All limited liability company proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents and the Offering Memorandum, and all other legal matters relating to the Transaction Documents
(e) Winthrop, Stimson, Putnxx & Xoberts, Orrick, Herrxxxxxx & Sutcliffe and Davix Xxxxxxx, Xxq., General Counsel of PPL Montana, shall have furnished to the Initial Purchasers their written opinion, as transaction counsel to PPL Montana, addressed to the Initial Purchasers and dated as of At the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially to the aggregate effect set forth in Annex B hereto.
(f) The Initial Purchasers you shall have received from Lathxx & Watkxxx, xxunsel Counsel for the Initial Purchasers, such opinion or opinions, dated as of the Closing Date, with respect to such matters as the Initial Purchasers may reasonably require, and the Companies shall have furnished to such counsel such documents and information as they request for the purpose of enabling them to pass upon such matters.
(g) All of the transactions contemplated by the Lease Transactions to be completed on or before the Closing Date shall have been consummated or shall be consummated concurrently with the transactions contemplated hereby, and the Initial Purchasers shall have received counterparts, conformed as executed, of the Operative Documents.
(h) PPL Montana shall have furnished to the Initial Purchasers a letter (the "Initial Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the date hereof, in form and substance satisfactory to the Initial Purchasers, substantially to the effect set forth in Annex C hereto.
(i) PPL Montana shall have furnished to the Initial Purchasers a letter (the "Bring-Down Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the Closing Date:
(i) confirming that they are independent public accountants with respect to PPL Montana 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
(j) PPL Montana shall have furnished to the Initial Purchasers a certificatePurchaser an opinion, dated the Closing Date, substantially in the form set forth in Exhibit C hereto, with such changes therein as may be necessary to reflect any supplementation of its chief executive officer the Offering Circular prior to the Closing Date.
(d) At the Closing Date, you shall have received from PricewaterhouseCoopers LLP, the Company's independent certified public accountants (the "Accountants"), a letter dated the Closing Date and its chief financial officer stating that:
addressed to you to the effect that (i) such officers have carefully examined they are independent certified public accountants with respect to the Offering Memorandum;
Company under Rule 101 of the American Institute of Certified Public Accountants' (the "AICPA") Code of Professional Conduct and its interpretations and rulings; (ii) in their opinion, the financial statements and financial statement schedules audited by them and incorporated by reference in the Offering MemorandumCircular comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the applicable published rules and regulations thereunder; (iii) on the basis of performing the procedures specified by the AICPA for a review of interim financial information as described in SAS No. 71, Interim Financial Information, on the latest unaudited financial statements, if any, incorporated by reference in the Offering Circular, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 1999 to a specified date not more than five days prior to the date of such letter, and inquiries of officers of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of its datesuch procedures for your purposes), nothing has come to their attention which caused them to believe that, to the extent applicable, (excluding Appendices A, B and C thereto) did not include any untrue statement the unaudited financial statements of a material fact and did not omit to state a material fact necessary in order to make the statements therein, Company (if any) incorporated by reference in the light Offering Circular do not comply as to form in all material respects with the applicable accounting requirements of the circumstances under which they were made, Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; and (C) at a specified date not misleading, and since more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or decrease in its net assets or shareholders' equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering MemorandumCircular, no event has except in all instances for changes or decreases which the Offering Circular discloses have occurred which should have been or may occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in a supplement or amendment such letter, identifying the same and specifying the amount thereof; and
(iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Offering Memorandum so that Company (x) set forth in the Offering Memorandum Circular, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as so amended or supplementedspecified in Exhibit D hereto, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records of the Company, and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) would not include any untrue statement of a material fact set forth in the letter, and would not omit to state a material fact required found them 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;agreement.
(iiie) as of At the Closing Date, you shall have received a certificate signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of the Company, to the effect that (i) the representations and warranties of PPL Montana in this Agreement (including the representations and warranties of PPL Montana in the Participation Agreement which have been incorporated by reference herein) Company contained herein are true and correct in all material respectscorrect, PPL Montana (ii) the Company has performed and complied with all agreements and satisfied all conditions on its part in this Purchase Agreement to be performed or satisfied hereunder on complied with by the Company at or prior to the Closing Date, Date and subsequent to (iii) since the most recent date as of which information is given in the Offering Memorandum (exclusive of any amendment Circular, as it may then be amended or supplement thereto)supplemented, there has not been no any material adverse change in the business, property or financial position or results condition of operation the Company and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of PPL Montana or any of its subsidiariesbusiness, in each case other than as referred to in, or any changecontemplated by, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations or business of PPL Montana and its subsidiaries taken as a whole, except as set forth in the Offering Memorandum;
(iv) in their opinion, the Projections prepared by R.W. Xxxx xxx based upon assumptions which are consistent in all material respects with the Operative Documents and the Transaction Documents and which, to the extent material for purposes of consideration of the Projections taken as a whole, are disclosed in the Offering Memorandum; in their opinion, the Projections are reasonable in light of the assumptions made therein; it is understood that, despite their good faith assumptions and reasonable beliefs (A) the assumptions on which the Projections are based are subject to significant uncertainties and contingencies, many of which are beyond the control of PPL Montana, (B) there can be no assurance that the
(v) in their opinion, the information provided by PPL Montana to the Independent Engineer, Independent Market Consultant and the Independent Fuel Consultant, in the preparation of their reports set forth at Appendices A, B and C, respectively, to the Offering Memorandum is not incomplete or incorrect in any material respect; and
(vi) the Tax Indemnity Agreement executed on the Closing Date is substantially in the form of the Tax Indemnity Agreement reviewed by counsel to the Initial Purchasers on July 10, 2000 and any changes, additions or amendments made thereto since July 10, 2000 will not result in a material detrimental effect on the Initial Purchasers.
(k) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of PPL Montana.
(l) The Pass Through Trust Agreement shall have been duly executed and delivered by PPL Montana and the Pass Through Trustee, and the Certificates shall have been duly executed, delivered and authenticated in accordance with the Pass Through Trust Agreement.
(m) If any event shall have occurred prior to the Closing Date that requires PPL Montana under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, the Initial Purchasers shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Closing Date.
(n) There shall not have occurred any invalidation of Rule 144A 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 Certificates as contemplated hereby.
(o) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the member interests or long-term debt or any change, or any development involving a prospective
(p) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which wouldCircular, as of the Closing Date, prevent the issuance it may then be amended or sale of the Certificates; 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 Certificatessupplemented.
(q) The Equity Contribution Agreement related to each Lease Transaction among PPL Corporation, PPL Montana and the applicable Lease Indenture Trustee shall have been duly authorized, executed and delivered by the parties thereto and shall be in full force and effect.
(r) Subsequent to the execution and delivery of this Agreement:
(i) no downgrading shall have occurred in the rating accorded the Certificates or PPL Montana's 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 Certificates or PPL Montana's debt securities or preferred stock.
(s) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on any such exchange or market by the Commission, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities of PPL Montana on any exchange or in the over-the-counter market shall have been suspended;
(ii) a declaration of any moratorium on commercial banking activities by federal or New York state authorities;
(iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war; or
(iv) a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) the effect of which, in the case of this clause (iv), is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or the delivery of the Certificates on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(t) There shall exist at and as of the Closing Date no conditions that would constitute an event of default (or an event that with notice or the lapse of time, or both, would constitute an event of default) under the Facility Leases or, to PPL Montana's knowledge, Lessor Notes or the Certificates.
(u) Subsequent to the execution and delivery of this Agreement, S&P shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates, (B) Moodx'x xxxll have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than Baa3 with respect to the Certificates and (C) Fitch shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates.
(v) Each of the Independent Market Consultant, the Independent Fuel Consultant and the Independent Engineer shall have delivered to the Initial Purchasers a letter reaffirming the accuracy and completeness, as of the Closing Date, of the conclusions and findings of such firm contained in its final report in the Offering Memorandum.
(w) PPL Montana shall have furnished to the Initial Purchasers:
(i) a copy of the resolutions, certified by the Secretary or Assistant Secretary of PPL Montana as of the Closing Date, duly authorizing the execution, delivery and performance of the Transaction Documents and each other Operative Document to which it is a party and any other documents to be executed on or prior to the Closing Date by or on behalf of it in connection with the transactions contemplated thereby;
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the several Initial Purchasers to purchase and pay for any issue of Initial Purchasers’ Notes hereunder are subject to the accuracy, on and as of the date hereof and the Closing Date, of the representations and warranties of PPL Montana contained herein, to the accuracy of the statements of PPL Montana and its officers made in any certificates delivered pursuant hereto, to the performance by PPL Montana of its obligations hereunder, and to each of the following additional terms and conditions:
(a) Each That, 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 conditions set forth in Section 4 Issuer (or of each of such other counsel to the Participation Agreements shall have been satisfied in full. All certificates and opinions to be delivered therein shall also be delivered Issuer, including in-house counsel, as is reasonably acceptable to the Initial Purchasers) dated the Closing Date, Standard & Poor's Ratings Group ("S&P"), Moodx'x Xxxestors Service Inc. ("Moody's") in substantially the forms attached hereto as Exhibit B-1 and Fitcx XXXA Inc ("Fitch"). Each party to the Participation Agreement (other than PPL Montana) shall furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on the representations and warranties contained in the Participation Agreement, as though the Initial Purchasers were a party to the Participation Agreement. Each legal counsel which is delivering an opinion pursuant to Section 4(s) of the Participation Agreement shall address such opinion to the Initial Purchasers or furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on such opinions as though such opinions were addressed to the Initial PurchasersExhibit B-2.
(b) The Offering Memorandum (and any amendments or supplements thereto) shall have been printed and copies distributed to That, at 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 Certificates in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) None of Closing Date, the Initial Purchasers shall have discovered and disclosed to PPL Montana on or prior to the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains receive an untrue statement opinion of a fact which is material or omits to state any fact which is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(d) All limited liability company proceedings and other legal matters incident to the authorizationWeil, form and validity of each of the Transaction Documents and the Offering MemorandumGotshal & Xxxxxx LLP, and all other legal matters relating to the Transaction Documents
(e) Winthrop, Stimson, Putnxx & Xoberts, Orrick, Herrxxxxxx & Sutcliffe and Davix Xxxxxxx, Xxq., General Counsel of PPL Montana, shall have furnished to the Initial Purchasers their written opinion, as transaction counsel to PPL Montana, addressed to the Initial Purchasers and dated as of the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially to the aggregate effect set forth in Annex B hereto.
(f) The Initial Purchasers shall have received from Lathxx & Watkxxx, xxunsel for the Initial Purchasers, such opinion or opinions, dated as of the Closing Date, with respect to such the issuance and sale of the Notes, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and the Companies shall have furnished to such counsel such documents and information as they request for the purpose of enabling them to pass upon such matters.
(gc) All At the time of the transactions contemplated by the Lease Transactions to be completed on or before the Closing Date shall have been consummated or shall be consummated concurrently with the transactions contemplated herebyexecution of this Agreement, and the Initial Purchasers shall have received counterparts, conformed as executed, from each of the Operative Documents.
(h) PPL Montana shall have furnished to the Initial Purchasers a letter (the "Initial Letter") of PricewaterhouseCoopers Ernst & Young LLP and Deloitte & Touche LLP, addressed to the Initial Purchasers and dated the date hereofa letter, in form and substance satisfactory to the Initial Purchasers, substantially to the effect set forth in Annex C hereto.
(i) PPL Montana shall have furnished to the Initial Purchasers a letter (the "Bring-Down Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the Closing Date:
date hereof (i) confirming that they are an independent registered public accountants with respect to PPL Montana and its subsidiaries accounting firm within the meaning of Rule 101 Section 103(a)(3)(B) of the Code Xxxxxxxx-Xxxxx Act of Professional Conduct 2002 and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the AICPA and its interpretations and rulings thereunder;
Commission, (ii) stating, as of the date of the Bring-Down Letter 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 three business 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 each of Ernst & Young LLP and Deloitte & Touche LLP, referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (each such letter referred to as the “initial letter”), the Initial Purchasers shall have received a letter (the “bring-down letter”) of each of such accountants, addressed to the Initial Purchasers and dated as of the Closing Date (i) confirming that they are an independent registered public accounting firm within the meaning of Section 103(a)(3)(B) of the Xxxxxxxx-Xxxxx Act of 2002 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 Bringbring-Down Letterdown letter), that the conclusions and findings of such accountants firm with respect to the financial information and other matters covered by the Initial Letter are accurate; andinitial letter and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(je) PPL Montana That, at the Closing Date, the Issuer shall have furnished to the Initial Purchasers a certificate, certificate dated the Closing DateDate and signed by an officer of the Issuer, to the effect set forth below. The officer signing and delivering such certificate may rely upon the best of its chief executive officer and its chief financial officer stating that:his knowledge as to proceedings threatened.
(iA) such officers have carefully examined the Offering Memorandum;
(ii) in their opinion, the Offering Memorandum, as of its date, (excluding Appendices A, B and C thereto) did not include any untrue statement of a material fact and did 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 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;
(iii) as of the Closing Date, the representations and warranties of PPL Montana in this Agreement (including the representations and warranties of PPL Montana in the Participation Agreement which have been incorporated by reference herein) Issuer contained herein are true and correct in all material respectsrespects as if on and as of the Closing Date, PPL Montana and the Issuer has complied with performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder on thereunder, to the extent a party thereto, at or prior to the Closing Date, and subsequent to the date as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the financial position or results of operation of PPL Montana or any of its subsidiaries, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations or business of PPL Montana and its subsidiaries taken as a whole, except as set forth in the Offering Memorandum;
(ivB) in their opinion, the Projections prepared by R.W. Xxxx xxx based upon assumptions which are consistent in all material respects with the Operative Documents The issuance and the Transaction Documents and which, to the extent material for purposes of consideration sale of the Projections taken as a whole, are disclosed in Notes by the Offering Memorandum; in their opinion, the Projections are reasonable in light of the assumptions made therein; it is understood that, despite their good faith assumptions and reasonable beliefs Issuer hereunder has not been enjoined (Atemporarily or permanently) the assumptions on which the Projections are based are subject to significant uncertainties and contingencies, many of which are beyond the control of PPL Montana, (B) there can be no assurance that the
(v) in their opinion, the information provided by PPL Montana to the Independent Engineer, Independent Market Consultant and the Independent Fuel Consultant, in the preparation of their reports set forth at Appendices A, B and C, respectively, to the Offering Memorandum is not incomplete or incorrect in any material respect; and
(vi) the Tax Indemnity Agreement executed on the Closing Date is substantially in the form of the Tax Indemnity Agreement reviewed by counsel to the Initial Purchasers on July 10, 2000 and any changes, additions or amendments made thereto since July 10, 2000 will not result in a material detrimental effect on the Initial Purchasers.
(k) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of PPL Montana.
(l) The Pass Through Trust Agreement shall have been duly executed and delivered by PPL Montana and the Pass Through Trustee, and the Certificates shall have been duly executed, delivered and authenticated in accordance with the Pass Through Trust Agreement.
(m) If any event shall have occurred prior to the Closing Date that requires PPL Montana under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, the Initial Purchasers shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Closing Date.
(n) There shall not have occurred any invalidation of Rule 144A under the Securities Act by any court or any withdrawal governmental body 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 Certificates as contemplated hereby.agency;
(oC) Subsequent to the execution and delivery of this Agreement or, if earlier, and prior to the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto)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 in that does not indicate the member interests or long-term debt or any direction of a possible change, or any development involving a prospective
(p) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Certificates; 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 Certificates.
(q) The Equity Contribution Agreement related to each Lease Transaction among PPL Corporation, PPL Montana and the applicable Lease Indenture Trustee shall have been duly authorized, executed and delivered by the parties thereto and shall be in full force and effect.
(r) Subsequent to the execution and delivery of this Agreement:
(i) no downgrading shall have occurred in the rating accorded any of the Certificates Issuer’s or PPL Montana's debt any of its subsidiaries 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
(iiD) no such organization shall have publicly announced that it there has under surveillance or review (other than an announcement with positive implications of a possible upgrading), its rating of the Certificates or PPL Montana's debt securities or preferred stock.
(s) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limitedmaterial adverse change, or minimum prices shall have been established on any such exchange or market by development which could reasonably be expected to result in a prospective material adverse change, in the Commissionfinancial condition, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities of PPL Montana on any exchange or in the over-the-counter market shall have been suspended;
(ii) a declaration of any moratorium on commercial banking activities by federal earnings, business or New York state authorities;
(iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war; or
(iv) a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) the effect of which, in the case of this clause (iv), is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the sale or the delivery of the Certificates on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(t) There shall exist at and as of the Closing Date no conditions that would constitute an event of default (or an event that with notice or the lapse of time, or both, would constitute an event of default) under the Facility Leases or, to PPL Montana's knowledge, Lessor Notes or the Certificates.
(u) Subsequent to the execution and delivery of this Agreement, S&P shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates, (B) Moodx'x xxxll have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than Baa3 with respect to the Certificates and (C) Fitch shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates.
(v) Each of the Independent Market Consultant, the Independent Fuel Consultant and the Independent Engineer shall have delivered to the Initial Purchasers a letter reaffirming the accuracy and completeness, as of the Closing Dateoperations, of the conclusions Issuer and findings of such firm contained its subsidiaries, taken as a whole, from that set forth in its final report in or incorporated by reference into the Offering Memorandum.
(wf) PPL Montana The Issuer and the Initial Purchasers shall have furnished entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(g) That the Issuer shall have performed in all material respects its obligations under this Agreement as are to be performed by the terms hereof at or before the time of purchase.
(h) The Offering Memorandum shall have 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 qualification 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, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers:
(i) a copy of the resolutions, certified by the Secretary or Assistant Secretary of PPL Montana as of the Closing Date, duly authorizing the execution, delivery and performance of the Transaction Documents and each other Operative Document to which it is a party and any other documents to be executed on or prior to the Closing Date by or on behalf of it in connection with the transactions contemplated thereby;.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the several Initial Purchasers hereunder are shall be subject to the accuracycondition that all representations and warranties and other statements of the Company herein are, on at and as of the date hereof and the Closing Date, of true and correct, the representations and warranties of PPL Montana contained herein, to condition that the accuracy of the statements of PPL Montana and its officers made in any certificates delivered pursuant hereto, to the performance by PPL Montana Company shall have performed all of its obligations hereunderhereunder theretofore to be performed, and to each of the following additional terms and conditions:
(a) Each That all legal proceedings to be taken in connection with the issue and sale of the conditions set forth Senior Notes shall be reasonably satisfactory in Section 4 of each of the Participation Agreements shall have been satisfied in full. All certificates form and opinions substance to be delivered therein shall also be delivered to the Initial PurchasersSkadden, Standard Arps, Slate, Meagxxx & Poor's Ratings Group ("S&P")Xlom XXX, Moodx'x Xxxestors Service Inc. ("Moody's") and Fitcx XXXA Inc ("Fitch"). Each party to the Participation Agreement (other than PPL Montana) shall furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on the representations and warranties contained in the Participation AgreementNew York, as though the Initial Purchasers were a party to the Participation Agreement. Each legal New York, counsel which is delivering an opinion pursuant to Section 4(s) of the Participation Agreement shall address such opinion to the Initial Purchasers or furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on such opinions as though such opinions were addressed to the Initial Purchasers.
(b) The Offering Memorandum (and any amendments or supplements thereto) shall have been printed and copies distributed to That, at 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 Certificates in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) None of Closing Date, the Initial Purchasers shall have discovered and disclosed to PPL Montana on or prior to be furnished with the following opinions, dated the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which is material or omits to state any fact which is material and is required to be stated therein or is necessary to make the statements therein not misleading.Date:
(di) All limited liability company proceedings and other legal matters incident to the authorization, form and validity Opinion of each of the Transaction Documents and the Offering Memorandum, and all other legal matters relating to the Transaction Documents
(e) Winthrop, Stimson, Putnxx & Xoberts, Orrick, Herrxxxxxx & Sutcliffe and Davix XxxxxxxMichxxx X. XxxXxxxxx, Xxq., General Counsel of PPL Montana, shall have furnished as special counsel to the Initial Purchasers their written opinion, as transaction counsel to PPL Montana, addressed to the Initial Purchasers Company and dated as of the Closing Date, in form and substance reasonably satisfactory to the Initial PurchasersPanhandle, substantially to the aggregate effect set forth in Annex B hereto.Exhibit A to this Agreement; and
(fii) The Initial Purchasers shall have received from Lathxx Opinion of Skadden, Arps, Slate, Meagxxx & Watkxxx, xxunsel for the Initial Purchasers, such opinion or opinions, dated as of the Closing Date, with respect to such matters as the Initial Purchasers may reasonably require, and the Companies shall have furnished to such counsel such documents and information as they request for the purpose of enabling them to pass upon such matters.
(g) All of the transactions contemplated by the Lease Transactions to be completed on or before the Closing Date shall have been consummated or shall be consummated concurrently with the transactions contemplated hereby, and the Initial Purchasers shall have received counterparts, conformed as executedXlom LLP, of the Operative Documents.
(h) PPL Montana shall have furnished to the Initial Purchasers a letter (the "Initial Letter") of PricewaterhouseCoopers LLPNew York, addressed to the Initial Purchasers and dated the date hereofNew York, in form and substance satisfactory counsel to the Initial Purchasers, substantially to the effect set forth in Annex C heretoExhibit B to this Agreement.
(ic) PPL Montana That on the date of the Preliminary Offering Memorandum and on the Closing Date the Initial Purchasers shall have furnished received a letter from each of Arthxx Xxxexxxx XXX, Deloitte & Touche LLP and KPMG LLP in form and substance satisfactory to the Initial Purchasers a letter (the "Bring-Down Letter") Purchasers, dated as of PricewaterhouseCoopers LLPsuch respective dates, addressed to the Initial Purchasers and dated the Closing Date:
(i) confirming that they are independent public accountants with respect to PPL Montana and its subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct of Act and the AICPA applicable rules and its interpretations and rulings regulations adopted by the Commission thereunder;
, (ii) stating, as of stating that in their opinion the date of the Bring-Down Letter (or, with respect to matters involving changes financial statements examined by them and included or developments since the respective dates as of which specified financial information is given incorporated by reference in the Offering MemorandumMemorandum complied as to form in all material respects with the applicable accounting requirements of the Commission, including the applicable rules and regulations adopted by the Commission, and (iii) covering, as of a date not more than three business days prior to the date of the Bring-Down Letter)such letter, that the conclusions and findings of such accountants with respect to the financial information and other matters covered as the Initial Purchasers reasonably request.
(d) That, between the date of the execution of this Agreement and the Closing Date, no material and adverse change shall have occurred in the business, properties or financial condition of each of the Company, Panhandle and their respective Subsidiaries, taken as a whole, which, in the judgment of the Initial Purchasers, impairs the marketability of the Senior Notes (other than changes referred to in or contemplated by the Initial Letter are accurate; andOffering Memorandum).
(je) PPL Montana That, at the Closing Date, each of the Company and Panhandle shall have furnished delivered to the Initial Purchasers a certificate, dated the Closing Date, certificate of its chief an executive officer of each of the Company and its chief financial officer stating Panhandle to the effect that:
, to the best of his or her knowledge, information and belief, (i) such officers there shall have carefully examined the Offering Memorandum;
(ii) in their opinion, the Offering Memorandum, as of its date, (excluding Appendices A, B and C thereto) did not include any untrue statement of a been no material fact and did not omit to state a material fact necessary in order to make the statements therein, adverse change in the light business, properties or financial condition of each of the circumstances under which they were made, not misleading, Company and since the date of the Offering Memorandum, no event has occurred which should have been Panhandle from that set forth in a supplement or amendment to the Offering Memorandum so that the Offering Memorandum (as so amended other than changes referred to in or supplementedcontemplated by the Offering Memorandum); (ii) 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;
(iii) as of the Closing Date, the representations and warranties of PPL Montana in this Agreement (including each of the representations Company and warranties Panhandle herein at and as of PPL Montana in the Participation Agreement which have been incorporated by reference herein) Closing Date are true and correct in all material respects, PPL Montana correct; and (iii) each of the Company and Panhandle has complied with all agreements and satisfied all conditions on its their part to be performed per formed or satisfied hereunder on at or prior to the Closing Date.
(f) That each of the Company and Panhandle shall have executed and delivered the Registration Rights Agreement.
(g) That Panhandle shall have executed and delivered the Supplemental Agreement, and subsequent to the date dated as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto)March 29, there has been no material adverse change in the financial position or results of operation of PPL Montana or any of its subsidiaries1999, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations or business of PPL Montana and its subsidiaries taken as a whole, except as set forth in the Offering Memorandum;
(iv) in their opinionamong Panhandle, the Projections prepared by R.W. Xxxx xxx based upon assumptions which are consistent in all material respects with the Operative Documents Company and the Transaction Documents and which, to the extent material for purposes of consideration of the Projections taken as a whole, are disclosed in the Offering Memorandum; in their opinion, the Projections are reasonable in light of the assumptions made therein; it is understood that, despite their good faith assumptions and reasonable beliefs (A) the assumptions on which the Projections are based are subject to significant uncertainties and contingencies, many of which are beyond the control of PPL Montana, (B) there can be no assurance that the
(v) in their opinion, the information provided by PPL Montana to the Independent Engineer, Independent Market Consultant and the Independent Fuel Consultant, in the preparation of their reports set forth at Appendices A, B and C, respectively, to the Offering Memorandum is not incomplete or incorrect in any material respect; and
(vi) the Tax Indemnity Agreement executed on the Closing Date is substantially in the form of the Tax Indemnity Agreement reviewed by counsel to the Initial Purchasers on July 10, 2000 and any changes, additions or amendments made thereto since July 10, 2000 will not result in a material detrimental effect on the Initial Purchasers.
(kh) The Initial Purchasers That the Company shall have received a counterpart performed such of its obligations under this Agreement as are to be performed at or before the Registration Rights Agreement which shall have been executed and delivered Closing Date by a duly authorized officer of PPL Montanathe terms hereof.
(li) The Pass Through Trust Agreement That the Company shall have been duly executed and delivered by PPL Montana and the Pass Through Trustee, and the Certificates shall have been duly executed, delivered and authenticated in accordance complied with the Pass Through Trust provisions of Section 5(c) hereof with respect to the furnishing of Offering Memorandum on the Business Day next succeeding the date of this Agreement.;
(mj) If That any event shall have occurred prior to the Closing Date that requires PPL Montana under Section 4(d) to prepare an amendment additional documents or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, agreements reasonably requested by the Initial Purchasers shall have been given a reasonable opportunity or their counsel to comment thereon, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Closing Date.
(n) There shall not have occurred any invalidation of Rule 144A 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 permit the Initial Purchasers to purchase, hold perform their obligations or effect resales of the Certificates as contemplated herebypermit their counsel to deliver opinions hereunder shall have been provided to them.
(ok) Subsequent to That between the date of the execution and delivery of this Agreement or, if earlier, and the dates as Closing Date there has been no downgrading of which information is given in the Offering Memorandum (exclusive investment ratings of any amendment of the Company's or supplement thereto)Panhandle's securities by Standard & Poor's Ratings Group, there Moodx'x Xxxestors Service, Inc. or Duff & Phelxx Xxxdit Rating Co., and neither the Company nor Panhandle shall not have been any change in the member interests placed on "credit watch" or long-term debt or any change, or any development involving a prospective
(p) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued "credit review" with negative implications by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Certificates; 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 Certificates.
(q) The Equity Contribution Agreement related to each Lease Transaction among PPL Corporation, PPL Montana and the applicable Lease Indenture Trustee shall have been duly authorized, executed and delivered by the parties thereto and shall be in full force and effect.
(r) Subsequent to the execution and delivery of this Agreement:
(i) no downgrading shall have occurred in the rating accorded the Certificates or PPL Montana's debt securities or preferred stock by any "nationally recognized such 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 Certificates or PPL Montana's debt securities or preferred stock.
(s) Subsequent to the execution and delivery of this Agreement there shall not have occurred organizations if any of the following:
(i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on any such exchange or market by the Commission, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities of PPL Montana on any exchange or in the over-the-counter market shall have been suspended;
(ii) a declaration of any moratorium on commercial banking activities by federal or New York state authorities;
(iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war; or
(iv) a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) the effect of which, in the case of this clause (iv), isoccurrences shall, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with after reasonable inquiries on the sale or the delivery part of the Certificates on Initial Purchasers, impair the terms and in marketability of the manner contemplated by this Agreement and in the Offering Memorandum (exclusive of any amendment or supplement thereto)Senior Notes.
(tl) There shall exist at That the acquisition and as reorganization of the Closing Date no conditions that would constitute an event of default Panhandle Companies (or an event that with notice or the lapse of time, or both, would constitute an event of default) under the Facility Leases or, to PPL Montana's knowledge, Lessor Notes or the Certificates.
(u) Subsequent to the execution and delivery of this Agreement, S&P shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates, (B) Moodx'x xxxll have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than Baa3 with respect to the Certificates and (C) Fitch shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates.
(v) Each of the Independent Market Consultant, the Independent Fuel Consultant and the Independent Engineer shall have delivered to the Initial Purchasers a letter reaffirming the accuracy and completeness, as of the Closing Date, of the conclusions and findings of such firm contained in its final report defined in the Offering Memorandum.
(w) PPL Montana by the Company, as described in the Offering Memorandum, shall have furnished to the Initial Purchasers:
(i) a copy of the resolutions, certified by the Secretary or Assistant Secretary of PPL Montana as of been consummated on the Closing Date, duly authorizing the execution, delivery and performance of the Transaction Documents and each other Operative Document to which it is a party and any other documents to be executed on or prior to the Closing Date by or on behalf of it in connection with the transactions contemplated thereby;.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective obligations of the several Initial Purchasers hereunder are subject to the accuracy, when made and on and as of the date hereof and the Closing Date, of the representations and warranties of PPL Montana the Company contained herein, to the accuracy of the statements of PPL Montana and its officers made in any certificates delivered pursuant hereto, to the performance by PPL Montana the Company and the Subsidiary Guarantors of its their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) Each of the conditions set forth in Section 4 of each of the Participation Agreements shall have been satisfied in full. All certificates and opinions to be delivered therein shall also be delivered to the Initial Purchasers, Standard & Poor's Ratings Group ("S&P"), Moodx'x Xxxestors Service Inc. ("Moody's") and Fitcx XXXA Inc ("Fitch"). Each party to the Participation Agreement (other than PPL Montana) shall furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on the representations and warranties contained in the Participation Agreement, as though the Initial Purchasers were a party to the Participation Agreement. Each legal counsel which is delivering an opinion pursuant to Section 4(s) of the Participation Agreement shall address such opinion to the Initial Purchasers or furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on such opinions as though such opinions were addressed to the Initial Purchasers.
(b) 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 Certificates in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) None of the Initial Purchasers shall not have discovered and disclosed to PPL Montana 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 which, in the opinion of the Initial Purchasers, is material or omits to state any a fact which which, in the opinion of the Initial Purchasers, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(db) All limited liability company corporate proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents this Agreement and the Offering Memorandum, and all other legal matters relating to this Agreement and the Transaction Documents
(e) Winthroptransactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, Stimson, Putnxx & Xoberts, Orrick, Herrxxxxxx & Sutcliffe and Davix Xxxxxxx, Xxq., General Counsel of PPL Montana, the Company and the Subsidiary Guarantors shall have furnished to the such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) The Initial Purchasers their written shall have received on the Closing Date an opinion, as transaction counsel to PPL Montana, addressed to the Initial Purchasers and dated as of the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, substantially of (i) Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxxx, counsel for the Company and the Subsidiary Guarantors, to the aggregate effect set forth in Annex Exhibit B heretohereto and (ii) XxXxxxxx Carano Wilson LLP to the effect that (1) the Company and the Subsidiary Guarantors possess all licenses, including licenses issued by the Nevada Gaming Commission and the Nevada Gaming Control Board, and has made all filings with, the appropriate regulatory entities necessary to own, lease and operate its properties and to conduct the business now conducted by it and as proposed to be conducted in the Offering Memorandum, that all such licenses are in full force and effect, that to its knowledge each of the Company and the Subsidiary Guarantors is in compliance with the terms and conditions of such licenses, and that to its knowledge no event has occurred (including, without limitation, the receipt of any notice from any regulatory entity) which allows, or after notice or lapse of time, or both, would allow the revocation, modification, suspension or termination of any such license or would result in any other material impairment of the rights of the Company and the Subsidiary Guarantors under such license, and (2) the information contained in the Offering Memorandum under the caption "Regulation and Licensing" has been reviewed by it and fairly summarizes the matters therein described in all material respects.
(fd) The Initial Purchasers shall have received from Lathxx Xxxxxx & WatkxxxXxxxxxx LLP, xxunsel counsel for the Initial Purchasers, such opinion or opinions, dated as of the Closing Date, with respect to such the issuance and sale of the Series A Notes, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and the Companies Company shall have furnished to such counsel such documents and information as they reasonably request for the purpose of enabling them to pass upon such matters.
(ge) All At the time of the transactions contemplated by the Lease Transactions to be completed on or before the Closing Date shall have been consummated or shall be consummated concurrently with the transactions contemplated herebyexecution of this Agreement, and the Initial Purchasers shall have received counterparts, conformed as executed, of the Operative Documents.
(h) PPL Montana shall have furnished to the Initial Purchasers from Deloitte & Touche LLP a letter (the "Initial Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the date hereofletter, in form and substance satisfactory to the Initial Purchasers, substantially to the effect set forth in Annex C hereto.
(i) PPL Montana shall have furnished to the Initial Purchasers a letter (the "Bring-Down Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the Closing Date:
date hereof (i) confirming that they are independent public accountants with respect to PPL Montana and its subsidiaries within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 101 2-01 of Regulation S-X of the Code of Professional Conduct of the AICPA and its interpretations and rulings thereunder;
Commission, (ii) stating, as of the date of the Bring-Down Letter 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 three business 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.
(f) 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 letter (the "bring-down letter") of such accountants, addressed to the Initial Purchasers and dated the Closing Date (i) confirming that they are independent public accountants 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 their 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 Bringtheir bring-Down Letterdown letter), that the conclusions and findings of such accountants firm with respect to the financial information and other matters covered by their initial letter and (iii) confirming in all material respects the Initial Letter are accurate; andconclusions and findings set forth in their initial letter.
(jg) PPL Montana The Company shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of its chief executive officer Chairman of the Board, its President or a Vice President and its chief financial officer Chief Financial Officer stating that:
(i) such officers The representations, warranties and agreements of the Company in Section 2 are true and correct as of the Closing Date; the Company has complied with all its agreements contained herein; and the conditions set forth in Section 9 have been fulfilled; and
(ii) They have carefully examined the Offering Memorandum;
(ii) Memorandum and, in their opinion, the Offering Memorandum, opinion (A) as of its date, (excluding Appendices A, B and C thereto) 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 in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading, and (B) since the date of the Offering Memorandum, 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;
(iii) as of the Closing Date, the representations and warranties of PPL Montana in this Agreement (including the representations and warranties of PPL Montana in the Participation Agreement which have been incorporated by reference herein) are true and correct in all material respects, PPL Montana 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 as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the financial position or results of operation of PPL Montana or any of its subsidiaries, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations or business of PPL Montana and its subsidiaries taken as a whole, except as set forth in the Offering Memorandum;
(iv) in their opinion, the Projections prepared by R.W. Xxxx xxx based upon assumptions which are consistent in all material respects with the Operative Documents and the Transaction Documents and which, to the extent material for purposes of consideration of the Projections taken as a whole, are disclosed in the Offering Memorandum; in their opinion, the Projections are reasonable in light of the assumptions made therein; it is understood that, despite their good faith assumptions and reasonable beliefs (A) the assumptions on which the Projections are based are subject to significant uncertainties and contingencies, many of which are beyond the control of PPL Montana, (B) there can be no assurance that the
(v) in their opinion, the information provided by PPL Montana to the Independent Engineer, Independent Market Consultant and the Independent Fuel Consultant, in the preparation of their reports set forth at Appendices A, B and C, respectively, to the Offering Memorandum is not incomplete or incorrect in any material respect; and
(vi) the Tax Indemnity Agreement executed on the Closing Date is substantially in the form of the Tax Indemnity Agreement reviewed by counsel to the Initial Purchasers on July 10, 2000 and any changes, additions or amendments made thereto since July 10, 2000 will not result in a material detrimental effect on the Initial Purchasers.
(k) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of PPL Montana.
(l) The Pass Through Trust Agreement shall have been duly executed and delivered by PPL Montana and the Pass Through Trustee, and the Certificates shall have been duly executed, delivered and authenticated in accordance with the Pass Through Trust Agreement.
(m) If any event shall have occurred prior to the Closing Date that requires PPL Montana under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, the Initial Purchasers shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance of the Closing Date.
(n) There shall not have occurred any invalidation of Rule 144A 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 Certificates as contemplated hereby.
(oh) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the member interests or long-term debt or any change, or any development involving a prospective
(p) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Certificates; 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 Certificates.
(q) The Equity Contribution Agreement related to each Lease Transaction among PPL Corporation, PPL Montana and the applicable Lease Indenture Trustee shall have been duly authorized, executed and delivered by the parties thereto and shall be in full force and effect.
(r) Subsequent to the execution and delivery of this Agreement:
(i) no downgrading shall have occurred in the rating accorded the Certificates or PPL MontanaCompany's debt securities or preferred stock by any "nationally recognized statistical rating organization," ", as such that term is defined by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of pursuant to the Commission under the Securities Act; and
Act and (ii) no such organization shall have publicly announced that it has under surveillance or review (other than an announcement review, with positive implications of a possible upgrading)negative implications, its rating of any of the Certificates or PPL MontanaCompany's debt securities or preferred stocksecurities.
(si) 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, Exchange or the American Stock Exchange or in the over-the-counter market market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or limited, 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 any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities of PPL Montana on any exchange or in the over-the-counter market shall have been suspended;
(ii) a declaration of any banking moratorium on commercial banking activities shall have been declared by federal Federal or New York state authorities;
, (iii) an outbreak or escalation of hostilities or a declaration by 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; 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) the effect of which, in the case of this clause (iv), isincluding without limitation as a result of terrorist activities after the date hereof, or there shall have occurred any other calamity or crisis, as to make it, in the 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 Certificates Series A Notes being delivered on such Closing Date on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive or which, in the judgment of any amendment the Initial Purchasers would materially and adversely affect the financial markets or supplement thereto)the markets for the Series A Notes and other debt securities.
(tj) There The Company shall exist at have obtained all necessary governmental consents and as approvals required to consummate the offering and sale of the Closing Date no conditions that would constitute an event Notes and the Subsidiary Guarantees, including without limitation, all consents or approvals required by the Nevada Gaming Commission and the Nevada Gaming Control Board required to provide for the Security Interests, and the Initial Purchasers shall have received evidence to their satisfaction of default (or an event that the compliance by the Company with notice or the lapse of time, or both, would constitute an event of default) under the Facility Leases or, to PPL Montana's knowledge, Lessor Notes or the Certificatesthis condition.
(uk) Subsequent The Series A Notes shall have been approved by the NASD for trading and duly listed on PORTAL.
(l) The Company and the Subsidiary Guarantors shall have executed and delivered to the execution Trustee each of the Transaction Documents.
(i) A majority in aggregate principal amount of the Company's outstanding 103/4% Senior Secured Notes due 2008 (the "Outstanding Notes") shall have been validly tendered and delivery not withdrawn pursuant to the Company's offer to purchase for cash all of its Outstanding Notes and (ii) the Fourth Supplemental Indenture, dated as of May 24, 2004, to the Indenture, dated as of August 24, 2001, by and among the Company, as issuer, the Subsidiary Guarantors and The Bank of New York, as trustee, as supplemented as of August 23, 2002, January 23, 2003 and February 6, 2003, pursuant to which the Outstanding Notes were issued, shall be in full force and effect.
(n) Concurrently with the consummation of the transactions contemplated by this Agreement, S&P the Company shall have delivered to PPL Montana (entered into a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates, (B) Moodx'x xxxll have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than Baa3 with respect to the Certificates and (C) Fitch shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates.
(v) Each of the Independent Market Consultant, the Independent Fuel Consultant and the Independent Engineer shall have delivered to the Initial Purchasers a letter reaffirming the accuracy and completeness, five-year $150 million credit facility as of the Closing Date, of the conclusions and findings of such firm contained in its final report described in the Offering Memorandum.
(wo) PPL Montana The Initial Purchasers shall have furnished received such other documents, agreements, certificates and information as the Initial Purchasers shall have reasonably requested. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers:
(i) a copy of the resolutions, certified by the Secretary or Assistant Secretary of PPL Montana as of the Closing Date, duly authorizing the execution, delivery and performance of the Transaction Documents and each other Operative Document to which it is a party and any other documents to be executed on or prior to the Closing Date by or on behalf of it in connection with the transactions contemplated thereby;.
Appears in 1 contract
Conditions of Initial Purchasers’ Obligations. The respective several obligations of the several Initial Purchasers hereunder are subject to the accuracy, on and as of the date hereof and the Closing Date, of the representations and warranties of PPL Montana contained herein, to the accuracy of the statements warranties and representations on the part of PPL Montana the Company on the date hereof, at the Applicable Time and its officers made in any certificates delivered pursuant hereto, at the Time of Purchase and to the performance by PPL Montana of its obligations hereunder, and to each of the following additional terms and other conditions:
(a) Each of the conditions set forth in Section 4 of each of the Participation Agreements shall have been satisfied in full. All certificates That all legal proceedings to be taken and all legal opinions to be delivered therein shall also be delivered to rendered in connection with the Initial Purchasers, Standard & Poor's Ratings Group ("S&P"), Moodx'x Xxxestors Service Inc. ("Moody's") issue and Fitcx XXXA Inc ("Fitch"). Each party to the Participation Agreement (other than PPL Montana) shall furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on the representations and warranties contained in the Participation Agreement, as though the Initial Purchasers were a party to the Participation Agreement. Each legal counsel which is delivering an opinion pursuant to Section 4(s) sale of the Participation Agreement Senior Notes shall address such opinion be satisfactory in form and substance to the Initial Purchasers or furnish a letter to the Initial Purchasers indicating that the Initial Purchasers may rely on such opinions as though such opinions were addressed Hunton & Xxxxxxxx LLP, counsel to the Initial Purchasers.
(b) The Offering Memorandum (That, at the Time of Purchase, the Representatives shall be furnished with the following opinions, dated the day of the Time of Purchase, with conformed copies or signed counterparts thereof for the other Initial Purchasers, with such changes therein as may be agreed upon by the Company and any amendments or supplements thereto) shall have been printed and copies distributed the Representatives with the approval of Hunton & Xxxxxxxx LLP, counsel 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 Certificates in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.Purchasers:
(c1) None Opinion of the Initial Purchasers shall have discovered and disclosed to PPL Montana on Xxxxxx X. Xxxxxxxxxx, Esq. or prior Xxxxxxx X. Xxxxxxx, Esq., counsel to the Closing Date that Company, substantially in the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which is material or omits to state any fact which is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(d) All limited liability company proceedings and other legal matters incident to the authorization, form and validity of each of the Transaction Documents and the Offering Memorandum, and all other legal matters relating to the Transaction Documents
(e) Winthrop, Stimson, Putnxx & Xoberts, Orrick, Herrxxxxxx & Sutcliffe and Davix Xxxxxxx, Xxq., General Counsel of PPL Montana, shall have furnished heretofore previously provided to the Initial Purchasers their written opinionPurchasers;
(2) Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, as transaction special tax counsel to PPL Montanathe Company, addressed substantially in the form heretofore previously provided to the Initial Purchasers Purchasers;
(3) Opinion and dated as negative assurance letter of the Closing DateHunton & Xxxxxxxx LLP, in form and substance reasonably satisfactory counsel to the Initial Purchasers, substantially in the forms heretofore previously provided to the aggregate effect set forth in Annex B heretoInitial Purchasers.
(fc) The Initial Purchasers That the Representatives shall have received from Lathxx & Watkxxx, xxunsel for on the Initial Purchasers, such opinion or opinions, dated as date hereof and shall receive at the Time of the Closing Date, with respect to such matters as the Initial Purchasers may reasonably require, and the Companies shall have furnished to such counsel such documents and information as they request for the purpose of enabling them to pass upon such matters.Purchase letters from:
(g1) All of the transactions contemplated by the Lease Transactions to be completed on or before the Closing Date shall have been consummated or shall be consummated concurrently with the transactions contemplated hereby, and the Initial Purchasers shall have received counterparts, conformed as executed, of the Operative Documents.
Deloitte & Touche LLP (hi) PPL Montana shall have furnished to the Initial Purchasers a letter (the "Initial Letter") of PricewaterhouseCoopers LLP, addressed to the Initial Purchasers and dated the date hereofhereof and (ii) dated the date of the Time of Purchase, respectively, in form and substance satisfactory to the Initial Purchasers, substantially Representatives (which may refer to the effect set forth in Annex C hereto.
(i) PPL Montana shall have furnished letter previously delivered to the Initial Purchasers a letter Representatives, as applicable) (the "Bring-Down Letter"a) of PricewaterhouseCoopers LLP, addressed confirming with respect to the Initial Purchasers and dated the Closing Date:
(i) confirming Company that they are independent public accountants auditors with respect to PPL Montana and its subsidiaries the Company within the meaning of Rule 101 the Act and the applicable published rules and regulations of the Code of Professional Conduct of Securities and Exchange Commission (the AICPA “Commission”) and its interpretations the Public Company Accounting Oversight Board (United States) thereunder, and rulings thereunder;
(iib) 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, 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 Bring-Down Letter)Representatives reasonably request; and
(2) PricewaterhouseCoopers LLP (i) dated the date hereof and (ii) dated the date of the Time of Purchase, that respectively, in form and substance satisfactory to the conclusions and findings of such accountants Representatives (which may refer to the letter previously delivered to the Representatives, as applicable) (a) confirming with respect to the financial information 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 covered by as the Initial Letter are accurate; andRepresentatives reasonably request.
(jd) PPL Montana shall have furnished That no amendment or supplement to the Initial Purchasers a certificate, dated the Closing Date, of its chief executive officer and its chief financial officer stating that:
(i) such officers have carefully examined the Offering Memorandum;
(ii) in their opinionPricing Disclosure Package, the Offering Memorandum, as Memorandum or Supplemental Written Offering Materials prior to the Time of its date, (excluding Appendices A, B and C thereto) did not include any untrue statement of a Purchase shall contain material fact and did not omit to state a material fact necessary in order to make the statements therein, information substantially different from that contained in the light of the circumstances under which they were madePricing Disclosure Package, 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 or Supplemental Written 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 Materials which is unsatisfactory in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(iii) as of the Closing Date, the representations and warranties of PPL Montana in this Agreement (including the representations and warranties of PPL Montana in the Participation Agreement which have been incorporated by reference herein) are true and correct in all material respects, PPL Montana has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder on or prior substance to the Closing DateRepresentatives or unsatisfactory in form to Hunton & Xxxxxxxx LLP, and subsequent to the date as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse change in the financial position or results of operation of PPL Montana or any of its subsidiaries, or any change, or any development including a prospective change, in or affecting the condition (financial or otherwise), results of operations or business of PPL Montana and its subsidiaries taken as a whole, except as set forth in the Offering Memorandum;
(iv) in their opinion, the Projections prepared by R.W. Xxxx xxx based upon assumptions which are consistent in all material respects with the Operative Documents and the Transaction Documents and which, to the extent material for purposes of consideration of the Projections taken as a whole, are disclosed in the Offering Memorandum; in their opinion, the Projections are reasonable in light of the assumptions made therein; it is understood that, despite their good faith assumptions and reasonable beliefs (A) the assumptions on which the Projections are based are subject to significant uncertainties and contingencies, many of which are beyond the control of PPL Montana, (B) there can be no assurance that the
(v) in their opinion, the information provided by PPL Montana to the Independent Engineer, Independent Market Consultant and the Independent Fuel Consultant, in the preparation of their reports set forth at Appendices A, B and C, respectively, to the Offering Memorandum is not incomplete or incorrect in any material respect; and
(vi) the Tax Indemnity Agreement executed on the Closing Date is substantially in the form of the Tax Indemnity Agreement reviewed by counsel to the Initial Purchasers on July 10, 2000 and any changes, additions or amendments made thereto since July 10, 2000 will not result in a material detrimental effect on the Initial Purchasers.
(ke) The Initial Purchasers shall have received a counterpart of That, from the Registration Rights Agreement which shall have been executed and delivered by a duly authorized officer of PPL Montana.
(l) The Pass Through Trust Agreement shall have been duly executed and delivered by PPL Montana and the Pass Through Trustee, and the Certificates shall have been duly executed, delivered and authenticated in accordance with the Pass Through Trust Agreement.
(m) If any event shall have occurred prior date hereof to the Closing Date that requires PPL Montana under Section 4(d) to prepare an amendment or supplement to the Offering Memorandum, such amendment or supplement shall have been prepared, the Initial Purchasers shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered to the Initial Purchasers reasonably in advance Time of the Closing Date.
(n) 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 Certificates as contemplated hereby.
(o) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto)Purchase, there shall not have been any change in the member interests or long-term debt or any change, or any development involving a prospective
(p) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would, as of the Closing Date, prevent the issuance or sale of the Certificates; 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 Certificates.
(q) The Equity Contribution Agreement related to each Lease Transaction among PPL Corporation, PPL Montana and the applicable Lease Indenture Trustee shall have been duly authorized, executed and delivered by the parties thereto and shall be in full force and effect.
(r) Subsequent to the execution and delivery of this Agreement:
(i) no downgrading shall have occurred in the rating accorded the Certificates or PPL Montana's 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 Certificates or PPL Montana's debt securities or preferred stock.
(s) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on any such exchange or market by the Commission, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities of PPL Montana on any exchange or in the over-the-counter market shall have been suspended;
(ii) a declaration of any moratorium on commercial banking activities by federal or New York state authorities;
(iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war; or
(iv) a material adverse change in general economicthe business, political properties or financial conditions (or condition of the effect of international conditions on the financial markets Company from that set forth in the United States shall be such) the effect of which, in the case of this clause (iv), is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable Preliminary Offering Memorandum or inadvisable to proceed with the sale or the delivery of the Certificates on the terms and in the manner contemplated by this Agreement and in the Offering Memorandum (exclusive other than changes referred to in or contemplated by the Preliminary Offering Memorandum), and that the Company shall, at the Time of any amendment or supplement thereto).
(t) There shall exist at and as of the Closing Date no conditions that would constitute an event of default (or an event that with notice or the lapse of timePurchase, or both, would constitute an event of default) under the Facility Leases or, to PPL Montana's knowledge, Lessor Notes or the Certificates.
(u) Subsequent to the execution and delivery of this Agreement, S&P shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates, (B) Moodx'x xxxll have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than Baa3 with respect to the Certificates and (C) Fitch shall have delivered to PPL Montana (a copy of which shall be delivered to the Initial Purchasers) a final rating letter, setting forth a rating of not less than BBB with respect to the Certificates.
(v) Each of the Independent Market Consultant, the Independent Fuel Consultant and the Independent Engineer shall have delivered to the Initial Purchasers a letter reaffirming the accuracy and completeness, as certificate of the Closing Date, Treasurer or an Assistant Treasurer of the conclusions Company to the effect that, to the best of his or her knowledge, information and findings of belief, there has been no such firm contained in its final report in the Offering Memorandumchange.
(wf) PPL Montana That, at the Time of Purchase, the Initial Purchasers shall have furnished to received the Initial Purchasers:Registration Rights Agreement executed by the Company and the Representatives.
(ig) a copy That the Company shall have performed such of its obligations under this Agreement as are to be performed at or before the resolutions, certified Time of Purchase by the Secretary or Assistant Secretary of PPL Montana as of the Closing Date, duly authorizing the execution, delivery and performance of the Transaction Documents and each other Operative Document to which it is a party and any other documents to be executed on or prior to the Closing Date by or on behalf of it in connection with the transactions contemplated thereby;terms hereof.
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