CONDITIONS OF OBLIGATIONS OF THE INITIAL PURCHASERS. The obligation of the Initial Purchasers to purchase the Firm Securities on the Closing Date and the Option Securities, if any, on the Option Closing Date are subject to the accuracy, as of the Closing Date or the Option Closing Date, as the case may be, of the representations and warranties of the Company contained herein, and to the performance by the Company of its covenants and obligations hereunder and to the following additional conditions: (a) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers. (b) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers. (c) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Xxxxx X. Xxxxxxx, Esq., General Counsel and Chief Financial Officer to the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers. (d) The Initial Purchasers shall have received an opinion, dated the Closing Date or the Option Closing Date, as the case may be, of Xxxxx Xxxx & Xxxxxxxx, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement, and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Xxxxx Xxxx & Xxxxxxxx shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. (e) The Initial Purchasers shall have received, on each of the date hereof, the Closing Date and, if applicable, the Option Closing Date, letters dated the date hereof, the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, of Ernst & Young LLP confirming that they are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder and stating that in their opinion the financial statements and schedules of the Company examined by them and incorporated by reference in the Offering Memorandum comply in form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the respective related published rules and regulations; and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to initial purchasers in Rule 144A offerings with respect to the financial statements and certain financial and statistical information contained or incorporated by reference in the Offering Memorandum. (f) The Initial Purchasers shall have received on the Closing Date and, if applicable, the Option Closing Date, as the case may be, a certificate or certificates of the Chief Executive Officer and the Chief Financial Officer of the Company to the effect that, as of the Closing Date or the Option Closing Date, as the case may be, each of them severally represents, to the best of their knowledge, as follows: (i) the representations and warranties of the Company contained in Section 1 hereof are true and correct as of the Closing Date or the Option Closing Date, as the case may be; (ii) he or she has carefully examined the Offering Memorandum (including the documents of the Company incorporated by reference therein) and, in his or her opinion, as of the Closing Date or Option Closing Date as the case may be, the statements contained in the Offering Memorandum (including the documents of the Company incorporated by reference therein) with respect to the Company are true and correct in all material respects, and with respect to the Company such Offering Memorandum (including the documents of the Company incorporated by reference therein) does 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; (iii) since the respective dates as of which information is given in the Offering Memorandum, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising in the ordinary course of business; and (iv) the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied under this Agreement and otherwise in connection with the transactions contemplated hereby at or prior to the Closing Date or the Option Closing Date, as the case may be. (g) The Company shall have furnished to the Initial Purchasers such further certificates and documents confirming the representations and warranties, covenants and conditions contained herein and related matters as the Initial Purchasers may reasonably have requested. (h) The Underlying Securities shall have been duly listed, subject to notice of issuance, on the New York Stock Exchange and the Securities shall have been designated as PORTAL-eligible securities. (i) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities or the rating of any Subsidiary by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act. (j) Each of the Indenture and the Registration Rights Agreement shall have been executed and delivered by all the parties thereto (other than the Initial Purchasers with respect to the Registration Rights Agreement). (k) The Company shall have caused each person listed on Exhibit D-1 to furnish to Deutsche Bank Securities Inc., on or prior to the date of this agreement, a letter or letters, in substantially the form attached hereto as Exhibit D-2, and such letter or letters shall be in full force and effect. The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects satisfactory to the Initial Purchasers. If any of the conditions hereinabove provided for in this Section 6 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the Initial Purchasers may terminate their obligations hereunder by notifying the Company of such termination in writing or by telegram at or prior to the Closing Date or the Option Closing Date, as the case may be. In such event, the Company and the Initial Purchasers shall not be under any obligation to each other (except to the extent provided in Sections 5 and 7 hereof).
Appears in 1 contract
Samples: Purchase Agreement (American Equity Investment Life Holding Co)
CONDITIONS OF OBLIGATIONS OF THE INITIAL PURCHASERS. The obligation of the Initial Purchasers to purchase the Firm Securities on the Closing Date and the Option Securities, if any, on the Option Closing Date are subject to the accuracy, as of the Closing Date or the Option Closing Date, as the case may be, of the representations and warranties of the Company contained herein, and to the performance by the Company of its covenants and obligations hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxx & Xxxxxxx & Xxxx LLP, special counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, in form and substance reasonably satisfactory Purchasers to the Initial Purchaserseffect set forth in Exhibit B hereto.
(b) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of SkaddenXxxxxx X. Xxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for Senior Vice President and General Counsel to the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, in form Purchasers (and substance reasonably satisfactory stating that it may be relied upon by counsel to the Initial Purchasers) to the effect that:
(i) based on such counsel’s current knowledge and after “due inquiry,” and subject to any modifications or qualifications in Exhibits C, D and E hereto, in connection with the Offering Memorandum, the statements in (x) “Part, I, Item 1 – Business –Gaming Regulation” and “Part I, Item 3 – Legal Proceedings” of the Company’s Annual Report on Form 10-K for the Year Ended October 31, 2003 and “Part 2, Item 1 – Legal Proceedings” of the Company’s Quarterly Report on Form 10-Q for the Three Months Ended January 31, 2004, both of which are incorporated by reference in the Offering Memorandum and (y) the Offering Memorandum under the heading “Regulation and Licensing” in the Offering Memorandum, insofar as such statements constitute a summary of documents and proceedings referred to therein or matters of law, but subject to the qualifications and explanatory text which is also contained therein, fairly summarize in all material respects the information called for with respect to such documents and matters; and
(ii) such counsel knows of no material legal or governmental proceedings pending or threatened against the Company or any of the Subsidiaries which have not been disclosed in the Company’s Annual Report on Form 10-K for the Year Ended October 31, 2003, as updated by the Company’s Quarterly Report on Form 10-Q for the Three Months Ended January 31, 2004. Such counsel’s opinion shall be subject to such limitations as are typical in attorney opinion letter for Rule 144A offerings. “Due inquiry” for purposes of clause (i) shall mean such inquiry as such counsel deems reasonable under all applicable facts and circumstances. Such counsel may note in such opinion that the Director of Compliance does not report to such counsel.
(c) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Xxxxx X. XxxxxxxXxxxxx Xxxxxxx Xxxx & Xxxxxxxx, Esq.Ltd., General Counsel and Chief Financial Officer to Minnesota counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, in form Purchasers (and substance reasonably satisfactory stating that it may be relied upon by counsel to the Initial Purchasers) to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by the Company;
(ii) the Company was duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Minnesota, with the power and authority to own or lease its properties and conduct its business under Minnesota corporate law as described in the Offering Memorandum under Minnesota law (it being understood that such counsel need express no opinion with respect to the Company’s qualification to do business in, good standing in, power, or authority as a foreign corporation or otherwise under the laws of any other jurisdiction);
(iii) the execution and delivery of this Agreement, the Indenture, the Securities, the Registration Rights Agreement and the issuance and sale of the Securities to the Initial Purchasers by the Company pursuant to this Agreement, and the issuance of the Underlying Securities issuable upon conversion of the Securities and the consummation of the transactions herein and therein contemplated do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the amended Articles of Incorporation or Bylaws of the Company;
(iv) the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and non-assessable; the shares of Common Stock initially issuable upon conversion of the Securities have been duly authorized and reserved for issuance upon conversion by all necessary corporate action of the Company and when issued, assuming issuance of such shares of Common Stock in compliance with the terms of the Notes and the Indenture, will be validly issued, fully paid and non-assessable; and no preemptive or similar rights of stockholders exist with respect to any of the shares of Common Stock initially issuable upon conversion of the Securities; and the Rights, if any, issuable upon conversion of the Securities in accordance with the terms of the Indenture and the Rights Agreement, will be validly issued;
(v) the statements under the caption “Description of Capital Stock” in the Offering Memorandum, insofar as such statements constitute a summary of documents referred to therein or matters of Minnesota corporate law, fairly summarize such documents and matters in all material respects; and
(vi) each document filed by the Company pursuant to the Exchange Act and incorporated by reference in the Offering Memorandum (or any amendment or supplement thereto) at the time filed with the Commission conformed in all material respects with the Exchange Act and the then-applicable rules and regulations thereunder in effect at the time of such filing (it being understood that such counsel expresses no opinion with respect to the financial statements and schedules included therein or with respect to the exhibits filed in, or omitted from, such documents).
(d) The Initial Purchasers shall have received an opinionon the Closing Date or the Option Closing Date, as the case may be, the opinions of Fox Rothschild LLP, New Jersey counsel for the Company, Xxxxxx Xxxxxx & Xxxxxxx, Nevada counsel for the Company, and Xxxxxx Xxxxxx LLP, Mississippi counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, of Xxxxx Xxxx & Xxxxxxxx, addressed to the Initial Purchasers (and stating that it may be relied upon by counsel for to the Initial Purchasers) to the effect set forth in Exhibits C, with respect to certain legal matters relating to this AgreementD and E hereto, and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Xxxxx Xxxx & Xxxxxxxx shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such mattersrespectively.
(e) The Initial Purchasers shall have receivedreceived from their counsel, Xxxxx Xxxx & Xxxxxxxx, an opinion dated the Closing Date or the Option Closing Date, as the case may be, substantially to the effect of opinions 2, 3, 5 and 6 of Exhibit B. In addition to the matters set forth above, such opinion shall also include a statement to the effect that nothing has come to the attention of such counsel which leads them to believe that the Offering Memorandum, as of its date or as of the Closing Date or the Option Closing Date, as the case may be, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that such counsel need express no view as to financial statements, related notes and schedules and statistical information therein). With respect to such statement, Xxxxx Xxxx & Xxxxxxxx may state that their belief is based upon the procedures set forth therein, but is without independent check and verification.
(f) The Initial Purchasers shall have received on each of the date hereof, the Closing Date and, if applicable, the Option Closing Date, letters dated the date hereof, the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasersyou, of Ernst Deloitte & Young Touche LLP confirming that they are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder and stating that in their opinion the financial statements and schedules of the Company examined by them and incorporated by reference in the Offering Memorandum comply in form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the respective related published rules and regulations; and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to initial purchasers in Rule 144A offerings with respect to the financial statements and certain financial and statistical information contained or incorporated by reference in the Offering Memorandum.
(fg) The Initial Purchasers shall have received on the Closing Date and, if applicable, the Option Closing Date, as the case may be, a certificate or certificates of the Chief Executive Officer and the Chief Financial Officer of the Company to the effect that, as of the Closing Date or the Option Closing Date, as the case may be, each of them severally represents, to the best of their knowledge, represents as follows:
(i) the representations and warranties of the Company contained in Section 1 hereof are true and correct as of the Closing Date or the Option Closing Date, as the case may be;
(ii) he or she has carefully examined the Offering Memorandum (including the documents of the Company incorporated by reference therein) and, in his or her opinion, as of the Closing Date or Option Closing Date as the case may be, the statements contained in the Offering Memorandum (including the documents of the Company incorporated by reference therein) with respect to the Company are were true and correct in all material respects, and and, with respect to the Company Company, such Offering Memorandum (including the documents of the Company incorporated by reference therein) does 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) since the respective dates as of which information is given in the Offering Memorandum, there has not been any Material Adverse Change material adverse change or any development involving a prospective Material Adverse Changematerial adverse change in or affecting the business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business; and
(iv) the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied under this Agreement and otherwise in connection with the transactions contemplated hereby at or prior to the Closing Date or the Option Closing Date, as the case may be.
(gh) The Company shall have furnished to the Initial Purchasers such further certificates and documents confirming the representations and warranties, covenants and conditions contained herein and related matters as the Initial Purchasers may reasonably have requested.
(hi) The Underlying Securities issuable upon conversion of the Securities shall have been duly listeddesignated for trading, subject to notice of issuance, on the New York Stock Exchange Nasdaq National Market and the Securities shall have been designated as PORTAL-eligible securities.
(ij) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities or the rating of any Subsidiary by any “nationally recognized statistical rating organization”, ,” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(jk) Each of The Indenture shall have been executed and delivered by all the Indenture parties thereto and the Registration Rights Agreement shall have been executed and delivered by all the parties thereto (other than the Initial Purchasers with respect to the Registration Rights Agreement)Company.
(kl) The Company shall have caused each person listed on Exhibit D-1 to furnish to Deutsche Bank Securities Inc., on or prior to the date of this agreement, a letter or letters, Lock-up Agreements described in substantially the form attached hereto as Exhibit D-2, and such letter or letters Section 4(f) shall be in full force and effect. The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects satisfactory to the Initial Purchasers. If any of the conditions hereinabove provided for in this Section 6 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the Initial Purchasers may terminate their obligations hereunder by notifying the Company of such termination in writing or by telegram at or prior to the Closing Date or the Option Closing Date, as the case may be. In such event, the Company and the Initial Purchasers shall not be under any obligation to each other (except to the extent provided in Sections 5 and 7 hereof).
Appears in 1 contract
CONDITIONS OF OBLIGATIONS OF THE INITIAL PURCHASERS. The obligation several obligations of the Initial Purchasers to purchase the Firm Securities Notes on the Closing Date and the Option SecuritiesNotes, if any, on the Option Closing Date are subject to the accuracy, accuracy as of the date hereof and as of the Closing Date or the Option Closing Date, as the case may be, of the representations and warranties of the Company contained herein, and to the performance by the Company of its respective covenants and obligations hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers.
(b) The Initial Purchasers Representative shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of SkaddenDilwxxxx Xxxxxx XXX, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for the Company, Company dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, in form Purchasers (and substance reasonably satisfactory stating that it may be relied upon by counsel to the Initial Purchasers.) to the effect that:
(ci) The Initial Purchasers shall have received on Company has been duly organized and is validly existing as a corporation in good standing under the Closing Date or laws of the Option Closing Date, as the case may be, the opinion State of Xxxxx X. Xxxxxxx, Esq., General Counsel and Chief Financial Officer to the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers.
(d) The Initial Purchasers shall have received an opinion, dated the Closing Date or the Option Closing Date, as the case may be, of Xxxxx Xxxx & Xxxxxxxx, counsel for the Initial PurchasersDelaware, with respect corporate power and authority to certain legal matters relating to this Agreement, own or lease its properties and such other related matters conduct its business as the Initial Purchasers may reasonably require. In rendering such opinion, Xxxxx Xxxx & Xxxxxxxx shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters.
(e) The Initial Purchasers shall have received, on each of the date hereof, the Closing Date and, if applicable, the Option Closing Date, letters dated the date hereof, the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, of Ernst & Young LLP confirming that they are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder and stating that in their opinion the financial statements and schedules of the Company examined by them and incorporated by reference in the Offering Memorandum comply in form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the respective related published rules and regulations; and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to initial purchasers in Rule 144A offerings with respect to the financial statements and certain financial and statistical information contained or incorporated by reference described in the Offering Memorandum.
(f) The Initial Purchasers shall have received on the Closing Date and, if applicable, the Option Closing Date, as the case may be, a certificate or certificates ; each of the Chief Executive Officer Domestic Subsidiaries (as hereinafter defined) has been duly organized and is validly existing as a corporation or limited liability company in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Offering Memorandum; the Company and each of the Domestic Subsidiaries are duly qualified to transact business and are in good standing as foreign corporations in the respective jurisdictions set forth in Exhibit C to this agreement, except where the failure to qualify would have a Material Adverse Effect, and the Chief Financial Officer outstanding shares of capital stock of each of the Domestic Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable and are owned by the Company to the effect thator a Domestic Subsidiary, as of the Closing Date or the Option Closing Date, as the case may be, each of them severally representsand, to the best of their such counsel's knowledge, as follows:
(i) the representations and warranties outstanding shares of capital stock of each of the Company contained in Section 1 hereof are true Domestic Subsidiaries is owned free and correct as of the Closing Date or the Option Closing Date, as the case may be;
(ii) he or she has carefully examined the Offering Memorandum (including the documents of the Company incorporated by reference therein) and, in his or her opinion, as of the Closing Date or Option Closing Date as the case may be, the statements contained in the Offering Memorandum (including the documents of the Company incorporated by reference therein) with respect to the Company are true and correct in all material respects, and with respect to the Company such Offering Memorandum (including the documents of the Company incorporated by reference therein) does 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;
(iii) since the respective dates as of which information is given in the Offering Memorandum, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising in the ordinary course of business; and
(iv) the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied under this Agreement and otherwise in connection with the transactions contemplated hereby at or prior to the Closing Date or the Option Closing Date, as the case may be.
(g) The Company shall have furnished to the Initial Purchasers such further certificates and documents confirming the representations and warranties, covenants and conditions contained herein and related matters as the Initial Purchasers may reasonably have requested.
(h) The Underlying Securities shall have been duly listed, subject to notice of issuance, on the New York Stock Exchange and the Securities shall have been designated as PORTAL-eligible securities.
(i) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities or the rating of any Subsidiary by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(j) Each of the Indenture and the Registration Rights Agreement shall have been executed and delivered by all the parties thereto (other than the Initial Purchasers with respect to the Registration Rights Agreement).
(k) The Company shall have caused each person listed on Exhibit D-1 to furnish to Deutsche Bank Securities Inc., on or prior to the date of this agreement, a letter or letters, in substantially the form attached hereto as Exhibit D-2, and such letter or letters shall be in full force and effect. The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects satisfactory to the Initial Purchasers. If any of the conditions hereinabove provided for in this Section 6 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the Initial Purchasers may terminate their obligations hereunder by notifying the Company of such termination in writing or by telegram at or prior to the Closing Date or the Option Closing Date, as the case may be. In such event, the Company and the Initial Purchasers shall not be under any obligation to each other (except to the extent provided in Sections 5 and 7 hereof).clear
Appears in 1 contract
CONDITIONS OF OBLIGATIONS OF THE INITIAL PURCHASERS. The obligation of the Initial Purchasers to purchase the Firm Securities on the Closing Date and the Option Securities, if any, on the Option Closing Date are subject to the accuracy, as of the Closing Date or the Option Closing Date, as the case may be, of the representations and warranties of the Company contained herein, and to the performance by the Company of its covenants and obligations hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx & Xxxx Axxxxxx Xxxxx LLP, special counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, Purchasers and substantially in the form and substance reasonably satisfactory to the Initial Purchasersattached as Exhibit A hereto.
(b) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of SkaddenRxxxxx X. Xxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for Executive Vice President and General Counsel of the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, Purchasers and substantially in the form and substance reasonably satisfactory to the Initial Purchasersof Exhibit B hereto.
(c) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Xxxxx X. Xxxxxxx, Esq., General Counsel and Chief Financial Officer to the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers.
(d) The Initial Purchasers shall have received an opinion, dated the Closing Date or the Option Closing Date, as the case may be, of Xxxxx Dxxxx Xxxx & XxxxxxxxWxxxxxxx, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement, and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Xxxxx Dxxxx Xxxx & Xxxxxxxx Wxxxxxxx shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters.
(ed) The Initial Purchasers shall have received, on each of the date hereof, the Closing Date and, if applicable, the Option Closing Date, letters dated the date hereof, the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, of Ernst & Young PricewaterhouseCoopers LLP confirming that they are independent public accountants within the meaning of the Securities Act and the applicable published rules and regulations thereunder and stating that in their opinion the financial statements and schedules of the Company examined by them and incorporated by reference in the Offering Memorandum comply in form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act and the respective related published rules and regulations; and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to initial purchasers in Rule 144A offerings with respect to the financial statements and certain financial and statistical information contained or incorporated by reference in the Offering Memorandum.
(fe) The Initial Purchasers shall have received on the Closing Date and, if applicable, the Option Closing Date, as the case may be, a certificate or certificates of the Chief Executive Financial Officer and the Chief Financial Officer one additional executive officer of the Company who is knowledgeable about the Company’s financial matters to the effect that, as of the Closing Date or the Option Closing Date, as the case may be, each of them severally represents, to the best of their knowledge, as followshis or her knowledge after reasonable investigation:
(i) the representations and warranties of the Company contained in Section 1 hereof are true and correct in all material respects (except for those representations and warranties as are qualified by materiality, which are true and correct in all respects) as of the Closing Date or the Option Closing Date, as the case may be;
(ii) he or she has carefully examined the Offering Memorandum (including the documents of the Company incorporated by reference therein) and, in his or her opinion, as of the Closing Date or Option Closing Date Date, as the case may be, the statements contained in the Offering Memorandum (including the documents of the Company incorporated by reference therein) with respect to the Company are true and correct in all material respects, and with respect to the Company such Offering Memorandum (including the documents of the Company incorporated by reference therein) does not omit to state a material fact necessary required to be stated therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(iii) since the respective dates as of which information is given in the Offering Memorandum, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising in the ordinary course of business; and
(iv) the Company has has, in all material respects, performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied under this Agreement and otherwise in connection with the transactions contemplated hereby at or prior to the Closing Date or the Option Closing Date, as the case may be.
(gf) The Company shall have furnished to the Initial Purchasers such further certificates and documents confirming the representations and warranties, covenants and conditions contained herein and related matters as the Initial Purchasers may reasonably have requested.
(hg) The Underlying Securities shall have been duly listedapproved for supplemental listing, subject to official notice of issuance, on the New York Stock Exchange and the Securities shall have been designated as PORTAL-eligible securities.
(ih) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities or the rating of any Subsidiary of the Company’s subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(ji) Each of the Indenture and the The Registration Rights Agreement shall have been executed and delivered by all the parties thereto (other than the Initial Purchasers with respect to the Registration Rights Agreement)thereto.
(kj) The Company shall have caused each person listed on Exhibit D-1 officer and director of the Company set forth in Schedule II hereto to furnish to Deutsche Bank Securities Inc.the Representatives, on or prior to the date of this agreement, a letter or letters, in substantially the form attached hereto as Exhibit D-2C hereto, and such letter or letters shall be in full force and effect.
(k) The Certificate of Designations shall have been duly filed with the Secretary of State of the State of Delaware.
(l) The Initial Purchasers shall have received letters, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Initial Purchasers, from Rxxxx Xxxxx Company, L.P., independent petroleum engineers for the Company, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers. The opinions and certificates mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in all material respects satisfactory to the Initial Purchasers. If any of the conditions hereinabove provided for in this Section 6 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the Initial Purchasers may terminate their obligations hereunder by notifying the Company of such termination in writing or by telegram at or prior to the Closing Date or the Option Closing Date, as the case may be. In such event, the Company and the Initial Purchasers shall not be under any obligation to each other (except to the extent provided in Sections 5 and 7 hereof).
Appears in 1 contract
Samples: Purchase Agreement (El Paso Corp/De)
CONDITIONS OF OBLIGATIONS OF THE INITIAL PURCHASERS. The obligation several obligations of the Initial Purchasers to purchase the Firm Underwritten Securities on the Closing Date and the Option Securities, if any, on the Option any Additional Closing Date are subject to the accuracy, as of the Time of Sale, on the Closing Date Date, or the Option applicable Additional Closing Date, as the case may be, of the representations and warranties of the Company contained herein, and to the performance by the Company of its covenants and obligations other obligation hereunder and to the following additional conditions:
(a) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date or any Additional Closing Date, as the case may be, prevent the issuance or sale of the Securities; and no injunction or order of any nature by a federal or state court of competent jurisdiction shall have been issued, as of the Closing Date or any Additional Closing Date, as the case may be, which would prevent the sale of the Securities.
(b) The Initial Purchasers Representative shall have received on the Closing Date or the Option any Additional Closing Date, as the case may be, the opinion and negative assurance letter 10b-5 statement of Skadden, Arps, Slate, Xxxxxxx MxXxxxxxx Will & Xxxx Exxxx LLP, special counsel for the CompanyCompany dated the Closing Date or any Additional Closing Date, as the case may be, addressed to the Initial Purchasers (and stating that it may be relied upon by counsel to the Initial Purchasers), in form and substance as previously agreed with the Representative.
(c) The Representative shall have received from Gxxxxxx Procter LLP, counsel for the Initial Purchasers, an opinion and 10b-5 statement, dated the Closing Date or any Additional Closing Date, as the Option case may be, with respect to such matters as the Representative may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(d) The Representative shall have received on the Closing Date or any Additional Closing Date, as the case may be, the opinion of the Senior Vice President and General Counsel of the Company dated the Closing Date or any Additional Closing Date, as the case may be, addressed to the Initial Purchasers, in form and substance reasonably satisfactory to as previously agreed with the Initial Purchasers.
(b) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers.
(c) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Xxxxx X. Xxxxxxx, Esq., General Counsel and Chief Financial Officer to the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers.
(d) The Initial Purchasers shall have received an opinion, dated the Closing Date or the Option Closing Date, as the case may be, of Xxxxx Xxxx & Xxxxxxxx, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement, and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Xxxxx Xxxx & Xxxxxxxx shall have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such mattersRepresentative.
(e) The Initial Purchasers You shall have received, on each of the date hereof, the Closing Date and, if applicable, the Option any Additional Closing Date, letters a letter dated the date hereof, the Closing Date or the Option any Additional Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial PurchasersRepresentative, of Ernst & Young LLP confirming that they are it is an independent registered public accountants accounting firm with respect to the Company and the Subsidiaries within the meaning of the Securities Act and the applicable published rules Rules and regulations thereunder Regulations and the PCAOB and stating that in their opinion the financial statements and schedules of the Company examined by them and included or incorporated by reference in the Time of Sale Information and the Offering Memorandum comply in form in all material respects with the applicable accounting requirements of the Securities Act and the Exchange Act related Rules and the respective related published rules and regulationsRegulations; and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to initial purchasers in Rule 144A offerings underwriters with respect to the financial statements and certain financial and statistical information contained or incorporated by reference in the Time of Sale Information and the Offering Memorandum.
(f) You shall have received, on the date hereof, the Closing Date and, if applicable, any Additional Closing Date, a letter dated the date hereof, the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative, of Rose, Sxxxxx & Jxxxxx LLP confirming that it was an independent registered public accounting firm with respect to Row 44, Inc. during the period covered by such financial statements within the meaning of the Securities Act and the applicable Rules and Regulations and the PCAOB and stating that in their opinion the financial statements and schedules examined by them and included or incorporated by reference in the Time of Sale Information and the Offering Memorandum comply in form in all material respects with the applicable accounting requirements of the Securities Act and the related Rules and Regulations; and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained in the Time of Sale Information and the Offering Memorandum.
(g) You shall have received, on the date hereof, the Closing Date and, if applicable, any Additional Closing Date, a letter dated the date hereof, the Closing Date or any Additional Closing Date, as the case may be, in form and substance satisfactory to the Representative, of Ernst & Young GmbH Wirtschaftsprufungsgesellschaft confirming that it was an independent auditor with respect to Advanced Inflight Alliance AG and its subsidiaries during the period covered by such financial statements within the meaning of the Securities Act and the applicable Rules and Regulations and the PCAOB and stating that in their opinion the financial statements and schedules examined by them and included or incorporated by reference in the Time of Sale Information and the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the related Rules and Regulations; and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained in the Time of Sale Information and the Offering Memorandum.
(h) You shall have received, on the date hereof, a copy of the receipt of a letter or other evidence of the consent under the Loan and Security Agreement dated December 22, 2014, among Citibank, N.A., the Company and the guarantors set forth therein, as further described in the Time of Sale Document and the Offering Memorandum, allowing for the offering and sale and for the Company to make payment in respect of, the Securities.
(i) The Initial Purchasers Representative shall have received on the Closing Date and, if applicable, the Option any Additional Closing Date, as the case may be, a certificate or certificates of the Chief Executive Officer and the Chief Financial Officer of the Company to the effect that, as of the Closing Date or the Option any Additional Closing Date, as the case may be, each of them severally represents, to the best of their knowledge, represents as follows:
(i) the The representations and warranties of the Company contained in Section 1 3 hereof are true and correct as of the Closing Date or the Option any Additional Closing Date, as the case may be;
(ii) he or she Such officer has carefully examined the Offering Memorandum (including the documents Time of the Company incorporated by reference therein) Sale Information and, in his or her opinion, as of the Closing Date or Option Closing Date as the case may beTime of Sale, the statements contained in the Offering Memorandum (including the documents Time of the Company incorporated by reference therein) with respect to the Company are true and correct in all Sale Information did not contain any untrue statement of a material respectsfact, and with respect to the Company such Offering Memorandum (including the documents Time of the Company incorporated by reference therein) does Sale Information 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; provided, however, that such officer makes no representations or warranties as to information contained in or omitted from the Time of Sale Information, in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of any Initial Purchaser through the Representative, specifically for use therein, it being understood and agreed that the only such information is that described in Section 13 hereof;
(iii) since Such officer has carefully examined the Offering Memorandum and, in his or her opinion, as of its date and the Closing Date or the applicable Additional Closing Date, as the case may be, the Offering Memorandum and any amendments and supplements thereto did not contain 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; provided, however, that such officer makes no representations or warranties as to information contained in or omitted from the Offering Memorandum, in reliance upon, and in conformity with, written information furnished to the Company by or on behalf of any Initial Purchaser through the Representative, specifically for use therein, it being understood and agreed that the only such information is that described in Section 13 hereof; and
(iv) Since the respective dates as of which information is given in the Time of Sale Information and the Offering Memorandum, there has not been any Material Adverse Change material adverse change or any development involving a prospective Material Adverse Changematerial adverse change in or affecting the business, properties, assets, rights, operations, or financial condition of the Company and its Subsidiaries taken as a whole, whether or not arising in the ordinary course of business; and.
(ivj) The Representative shall have received on each of the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied under this Agreement and otherwise in connection with the transactions contemplated hereby at or prior to date hereof, the Closing Date or the Option and, if applicable, any Additional Closing Date, as the case may be., a certificate of the Chief Financial Officer of the Company substantially in the form attached hereto as Exhibit C.
(gk) The Company shall have furnished to the Initial Purchasers Representative such further certificates and documents confirming the representations and warranties, covenants and conditions contained herein and related matters as the Initial Purchasers Representative may reasonably have requested.
(hl) The Underlying Securities shall have been duly listed, subject to notice of issuance, on the New York Stock Exchange be eligible for clearance and the Securities shall have been designated as PORTAL-eligible securitiessettlement through DTC.
(im) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice The Lockup Agreements described in Section 4(a)(xiii) hereof have been given of any intended or potential downgrading or of any review for a possible change that does not indicate received by the direction of the possible change, in the rating accorded any of the Company’s securities or the rating of any Subsidiary by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(j) Each of the Indenture Representative and the Registration Rights Agreement shall have been executed and delivered by all the parties thereto (other than the Initial Purchasers with respect to the Registration Rights Agreement).
(k) The Company shall have caused each person listed on Exhibit D-1 to furnish to Deutsche Bank Securities Inc., on or prior to the date of this agreement, a letter or letters, in substantially the form attached hereto as Exhibit D-2, and such letter or letters shall be are in full force and effect. The opinions All such opinions, certificates, letters and certificates other documents mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are satisfactory in all material respects satisfactory to the reasonable judgment of the Representative and counsel for the Initial Purchasers. If any of the conditions hereinabove provided for in this Section 6 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the obligations of the Initial Purchasers hereunder may terminate their obligations hereunder be terminated by the Representative by notifying the Company of such termination in writing or by telegram at or prior to the Closing Date or the Option any Additional Closing Date, as the case may be. In such event, the Company and the Initial Purchasers shall not be under any obligation to each other (except to the extent provided in Sections 5 and 7 hereof).
Appears in 1 contract
Samples: Purchase Agreement (Global Eagle Entertainment Inc.)
CONDITIONS OF OBLIGATIONS OF THE INITIAL PURCHASERS. The obligation of the Initial Purchasers to purchase the Firm Securities on the Closing Date and the Option Securities, if any, on the Option Closing Date are is subject to the accuracy, as of the Closing Date or the Option Closing Date, as the case may be, of the representations and warranties of the Company contained herein, and to the performance by the Company of its covenants and obligations hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received on On the Closing Date or the Option Closing Date, as the case may be, the opinion and negative assurance letter of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for Initial Purchasers shall have received the Companyopinion, dated as of the Closing Date or the Option Closing Date, as the case may be, and addressed to the Initial Purchasers, of:
(i) Xxxxxxxx & Xxxxx LLP, counsel for the Company, substantially in the form of Exhibit B hereto. In rendering such opinion, Xxxxxxxx & Xxxxx LLP shall have received and substance may rely upon such certificates and other documents and information as it may reasonably satisfactory request to pass upon such matters.
(ii) Xxxxxx Xxxxxxxx, Esq., Executive Vice President, General Counsel and Secretary for the Initial Purchasers.Company, substantially in the form of Exhibit C hereto. In rendering such opinion, Xxxxxx Xxxxxxxx shall have received and may rely upon such certificates and other documents and information as he may reasonably request to pass upon such matters
(b) The Initial Purchasers shall have received on On the Closing Date or the Option Closing Date, as the case may be, the opinion of SkaddenInitial Purchasers shall have received the opinion, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel for in form and substance reasonably satisfactory to the CompanyInitial Purchasers, dated as of the Closing Date or the Option Closing Date, as the case may be, be and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers.
(c) The Initial Purchasers shall have received on the Closing Date or the Option Closing Date, as the case may be, the opinion of Xxxxx X. Xxxxxxx, Esq., General Counsel and Chief Financial Officer to the Company, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers.
(d) The Initial Purchasers shall have received an opinion, dated the Closing Date or the Option Closing Date, as the case may be, of Xxxxx Xxxx Xxxxxx Xxxxxx & XxxxxxxxXxxxxxx LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement, Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Xxxxx Xxxx Xxxxxx Xxxxxx & Xxxxxxxx Xxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as they it may reasonably request to pass upon such matters.
(ec) The Initial Purchasers shall have received, on each of received from the Independent Accountants a comfort letter or letters dated the date hereof, hereof and the Closing Date and, if applicable, the Option Closing Date, letters dated the date hereof, the Closing Date or the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, of Ernst & Young LLP confirming that they are independent public accountants within the meaning of the Securities Act .
(d) The representations and the applicable published rules and regulations thereunder and stating that in their opinion the financial statements and schedules warranties of the Company examined by them contained in this Agreement shall be true and incorporated by reference in the Offering Memorandum comply in form correct in all material respects with the applicable accounting requirements (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) on and as of the Securities Act date hereof and the Exchange Act on and the respective related published rules and regulations; and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to initial purchasers in Rule 144A offerings with respect to the financial statements and certain financial and statistical information contained or incorporated by reference in the Offering Memorandum.
(f) The Initial Purchasers shall have received on the Closing Date and, if applicable, the Option Closing Date, as the case may be, a certificate or certificates of the Chief Executive Officer and the Chief Financial Officer of the Company to the effect that, as of the Closing Date or the Option Closing Date, as the case may be, each as if made on and as of them severally representsthe Closing Date or the Option Closing Date, as the case may be; the statements of the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date or the Option Closing Date, as the case may be; the Company shall have performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date or the Option Closing Date, as the case may be; and, except as described in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would reasonably be expected to have a Material Adverse Effect.
(e) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date and, if applicable, the Option Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slowdown or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably be expected to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Company, dated the Closing Date and, if applicable, the Option Closing Date, signed on behalf of the Company by its Chairman of the Board, President or any Senior Vice President and the Chief Financial Officer, to the best of their knowledge, as follows:effect that
(i) the representations and warranties of the Company contained in Section 1 hereof this Agreement are true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) on and as of the date hereof and on and as of the Closing Date, and the Company has performed all covenants and agreements and satisfied in all material respects all conditions on its part to be performed in all material respects or satisfied hereunder at or prior to the Closing Date or the Option Closing Date, as the case may be;
(ii) he or she has carefully examined the Offering Memorandum (including the documents of the Company incorporated by reference therein) and, in his or her opinion, as of at the Closing Date or Option Closing Date as the case may beand, the statements contained in the Offering Memorandum (including the documents of the Company incorporated by reference therein) with respect to the Company are true and correct in all material respectsif applicable, and with respect to the Company such Offering Memorandum (including the documents of the Company incorporated by reference therein) does 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;
(iii) since the respective dates as of which information is given in the Offering Memorandum, there has not been any Material Adverse Change or any development involving a prospective Material Adverse Change, whether or not arising in the ordinary course of business; and
(iv) the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied under this Agreement and otherwise in connection with the transactions contemplated hereby at or prior to the Closing Date or the Option Closing Date, as since the case may be.date hereof or since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would reasonably be expected to have a Material Adverse Effect; and
(giii) The Company shall have furnished to the Initial Purchasers such further certificates and documents confirming sale of the representations and warranties, covenants and conditions contained herein and related matters as the Initial Purchasers may reasonably have requestedSecurities hereunder has not been enjoined (temporarily or permanently).
(h) The Nasdaq National Market shall not have objected to the listing of the Underlying Securities shall have been duly listed, subject to notice issuable upon conversion of issuance, the Securities on the New York Stock Exchange Nasdaq National Market and the Securities shall have been designated as PORTALPortal-eligible securities.
(i) Subsequent to the execution and delivery of this Agreement and prior to On the Closing Date, there the Initial Purchasers shall not have occurred any downgrading, nor received the Registration Rights Agreement and the Indenture executed by the Company and such agreements shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate be in full force and effect at all times from and after the direction of the possible change, in the rating accorded any of the Company’s securities or the rating of any Subsidiary by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Securities ActClosing Date.
(j) Each of the Indenture and the Registration Rights Agreement shall have been executed and delivered by all the parties thereto (other than the Initial Purchasers with respect to the Registration Rights Agreement).
(kThe Lock-up Agreements described in Section 5(j) The Company shall have caused each person listed on Exhibit D-1 to furnish to Deutsche Bank Securities Inc., on or prior to the date of this agreement, a letter or letters, in substantially the form attached hereto as Exhibit D-2, and such letter or letters shall be in full force and effect. The opinions On or before the Closing Date, the Initial Purchasers and certificates mentioned in counsel for the Initial Purchasers shall have received such further documents, opinions, certificates, letters and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement shall be deemed to be in compliance will comply with the provisions hereof only if they are reasonably satisfactory in all material respects satisfactory to the Initial Purchasers. If any of Purchasers and counsel for the conditions hereinabove provided for in this Section 6 shall not have been fulfilled when and as required by this Agreement to be fulfilled, the Initial Purchasers may terminate their obligations hereunder by notifying the Company of such termination in writing or by telegram at or prior to the Closing Date or the Option Closing Date, as the case may be. In such event, the Company and the Initial Purchasers shall not be under any obligation to each other (except to the extent provided in Sections 5 and 7 hereof).Initial
Appears in 1 contract
