Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date: (a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion. (b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion. (c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, 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, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters. (d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (e) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect. (f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date. (g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect. (h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:
Appears in 2 contracts
Samples: Purchase Agreement (Bluewater Offshore Production Systems Usa Inc), Purchase Agreement (Bluewater Offshore Production Systems Usa Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of ------------------------------------------------- the Initial Purchasers Purchaser to purchase and pay for the Securities Notes shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On All of the Closing Date, conditions contained in the Initial Purchasers Credit Agreement to be fulfilled or complied with prior to any borrowing under such agreement (other than the transactions contemplated by this Agreement) shall have received opinions, dated as been complied with; and the financing for the Recapitalization (other than the offering and sale of the Closing Date Notes as set forth herein and addressed to the Initial Purchasers, application of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretionproceeds therefrom) shall have been consummated or shall be consummated simultaneously herewith.
(b) On the Closing Date, the Initial Purchasers Purchaser shall have received an the opinion, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of Xxx Xxx Xxxxxxxx & Xxxxx, in-house legal counsel for the IssuersCompany, in form and substance satisfactory to counsel for the Initial Purchasers Purchaser substantially in their reasonable discretionthe form set forth on Exhibit A hereto. In rendering such opinion, Xxxxxxxx & Xxxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(c) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx, counsel for the Initial PurchasersPurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser.
(e) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; 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 Memorandum (whether or not audited)Final Memorandum, there shall have been no event or development, and no information shall have become known, development that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The Recapitalization and the sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct of the business and operations of each the Company or any of the Issuers Subsidiaries shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each the Company, any of the Issuers Subsidiaries shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would notnot reasonably be expected, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers Purchaser shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, President or any Senior Vice President and the Chief Financial Officer (in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuertheir respective capacities as such), to the effect that, to the best of their knowledge and belief:
(i) The representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the 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 events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect;
(iii) The Recapitalization and the sale of the Notes hereunder have not been enjoined (temporarily or permanently); and
(iv) There have been no material amendments, alterations, modifications or waivers of any provisions of the Recapitalization Agreement and related documents since the date of the execution and delivery thereof by the parties thereto; the Company has complied in all material respects with all agreements and covenants in the Recapitalization Agreement and related documents and performed all conditions specified therein required to be complied with or performed by them at or prior to the Closing Date.
(i) On the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(j) The Initial Purchaser shall have received from the Company a true and correct executed copy of the Credit Agreement, dated on or about the Closing Date, and there shall have been no material amendments, alterations, modifications or waivers of any provisions of the Credit Agreement, and there exists as of the Closing Date (after giving effect to the transactions contemplated by this Agreement and the application of the proceeds received by the Company from the sale of the Notes) no condition that would constitute a Default or an Event of Default (each as defined in the Credit Agreement) under the Credit Agreement.
(k) The Initial Purchaser shall have received from the Company a true and correct executed copy of the Recapitalization Agreement, and there shall have been no material amendments, alterations, modifications or waivers of any provisions of the Recapitalization Agreement since the date of this Agreement; all conditions to effect the Acquisition set forth in the Recapitalization Agreement shall have been satisfied.
(l) On the Closing Date, the Initial Purchaser shall have received an opinion from Xxxxxx, Xxxxxx & Co., in a form reasonably satisfactory to the Initial Purchaser, regarding the solvency of the Company immediately after the consummation of the Recapitalization and the transactions contemplated thereby. On or before the Closing Date, the Initial Purchaser and counsel for the Initial Purchaser 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 will comply with the provisions hereof only if they are rea- sonably satisfactory in all material respects to the Initial Purchaser and counsel for the Initial Purchaser. The Company shall furnish to the Initial Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 2 contracts
Samples: Purchase Agreement (Therma Wave Inc), Purchase Agreement (Therma Wave Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be is subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchaser:
(ai) On the Closing Date, the The Initial Purchasers Purchaser shall have received opinions, dated as an opinion of the Closing Date and addressed counsel to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, Issuers in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On Purchaser and Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchaser, dated the Closing Date, of Xxxxxx, Xxxxxxxx and Xxxxxx P.A., substantially in the form of Exhibit B hereto. In rendering such opinion, Xxxxxx, Xxxxxxxx and Xxxxxx P.A. shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchasers Purchaser and Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinionof Xxxxxx Xxxxxx & Xxxxxxx LLP, in form and substance satisfactory counsel to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Initial PurchasersPurchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it they may reasonably request to pass upon such matters. In addition, in rendering their opinion, Xxxxxx Xxxxxx & Xxxxxxx LLP may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(diii) The Initial Purchasers Purchaser shall have received (a) from Ernst & Young LLP, independent public accountants for the Independent Accountants a comfort letter or Issuers, "comfort" letters dated the date hereof and the Closing DateDate and (b) from the Chief Financial Officer and Comptroller of the Company, a letter, dated the date hereof, relating to the financial statements and other financial information contained in the Final Memorandum previously audited by Xxxxxx Xxxxxxxx LLP, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser and Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchaser.
(eiv) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described .
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not auditedin the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fx) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the Securities hereunder Notes as described under "Use of Proceeds" in the Final Memorandum.
(xii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xiii) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be enjoined (temporarily or permanently) on in full force and effect at all times from and after the Closing Date.
(gxiv) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident On or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated before the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate Indenture shall be signed executed by one Authorized Person who the Issuers and the Trustee and such agreement shall be in full force and effect at all times from and after the managing director Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Issuers shall furnish to the Initial Purchaser such conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser shall reasonably request.
Appears in 2 contracts
Samples: Purchase Agreement (Affinity Group Inc), Purchase Agreement (Affinity Group Holding, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, Notes shall be subject to the satisfaction or waiver waiver, in the sole discretion of the Representative, of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx XxxxxXxxxxx & Xxxxxx L.L.P., in-house legal counsel for the Issuers, in form and substance satisfactory to counsel for the Initial Purchasers Purchasers, as to the matters described in their reasonable discretionAnnex C hereto.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of MilbankXxxxxx, Tweed, Xxxxxx Xxxx & XxXxxxXxxxxxxx LLP, 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, MilbankXxxxxx, Tweed, Xxxxxx Xxxx & XxXxxx Xxxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Issuers’ 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; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 be reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct of the business and operations of each none of the Issuers nor any of the Material Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the Issuerscertificates, dated the Closing Date, signed on behalf by the Chief Executive Officer or Chief Financial Officer of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Issuers, to the effect that:
(i) the representations and warranties of each of the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and each of the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final 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 be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors and such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and 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 Issuers and the Guarantors as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 2 contracts
Samples: Purchase Agreement (Targa Resources Partners LP), Purchase Agreement (Targa Resources Partners LP)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law)Bxxxx Xxxx LLP, counsel for the Issuer and/or Company and certain of the Subsidiary Guarantors, as the case may be, in each case, in form and substance satisfactory to counsel for the Initial Purchasers Purchasers, as set forth in their reasonable discretion.
(b) On Exhibit A-1 and Exhibit A-2 hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers. Additionally, on the Closing Date, the Initial Purchasers shall have received an opiniona reliance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx XxxxxBxxxx Xxxx LLP, in-house legal counsel for the IssuersCompany and certain of the Subsidiary Guarantors, in form and substance satisfactory to allowing the Initial Purchasers to rely on such legal opinions as Bxxxx Xxxx LLP may deliver to the Trustee in their reasonable discretionconnection with the offering of the Securities.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Cxxxxx Xxxxxx & XxXxxxRxxxxxx llp, 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 counsel may also state that, insofar as such opinionopinion involves factual matters, Milbankthey have relied, Tweedto the extent they deem proper, Xxxxxx & XxXxxx upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have received and may rely upon such certificates and other documents and information as it may reasonably request been provided to pass upon such mattersthe Initial Purchasers.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited, unaudited and pro forma financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date the information stated in the comfort letter dated the date hereof and similarly address the audited, unaudited and pro forma financial information contained in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Subsidiary Guarantors’ 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; the Issuers Company and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)Pricing Disclosure Package, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate certificates of the IssuersCompany and each of the Subsidiary Guarantors, dated the Closing Date, signed on behalf of each Issuer the Company or the applicable Subsidiary Guarantor by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company or the applicable Subsidiary Guarantor contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Company or the applicable Subsidiary Guarantor has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or such Subsidiary Guarantor, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Subsidiary Guarantors and such agreement shall be in full force and effect.
(i) The Securities shall be eligible for clearance and settlement through The Depository Trust Company. On or before the Closing Date, the Initial Purchasers and 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company and the Subsidiary Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsopinion letters, each in form and substance satisfactory to the Initial Purchasers and (other than with respect to clause (i) below) substantially as set forth in Exhibit A hereto, each dated as of the Closing Date and addressed to the Initial PurchasersPurchasers with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law)i) Xxxxx Xxxxx L.L.P., counsel for the Issuer and/or Company and the Guarantors (including negative assurance paragraphs), (ii) Xxxxxxx Xxxxxx, P.A., special Florida and Georgia counsel for the Company and the Guarantors, (iii) Xxxxxxx & Xxxxxxx, P.A., special North Carolina counsel for the Company and the Guarantors, and (iv) Xxxx, Xxxxxxx & Xxxxxxxxx, PLLC, special Washington counsel for the Company and the Guarantors. In rendering such opinions, such counsel shall have received and may rely upon such certificates and other documents and information as the case they may be, in each case, in form and substance satisfactory reasonably request to the Initial Purchasers in their reasonable discretionpass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date opinion and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opiniona negative assurance letter, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxx Xxxx & XxXxxxXxxxxxxx LLP, 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, Milbank, Tweed, Xxxxxx Xxxxx Xxxx & XxXxxx Xxxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers, with respect to the audited and any unaudited financial information included or incorporated by reference in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update, as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information included or incorporated by reference in the Final Memorandum.
(d) [Reserved.]
(e) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in its Chief Executive Officer and the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final 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 be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) The Company and the Guarantors party thereto shall have executed and delivered the Base Indenture, and the Company and the Guarantors shall have executed and delivered the Fifth Supplemental Indenture, each in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof.
(i) No registration under the Act of the Securities is required in connection with the sale of the Securities to the Initial Purchasers as contemplated by this Agreement and the Pricing Disclosure Package and the Final Memorandum or in connection with the initial resale of the Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the representations of the Company contained in this Agreement and of the Initial Purchasers in Section 8 hereof regarding the absence of a general solicitation in connection with the sale of such Securities to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. On or before the Closing Date, the Initial Purchasers and 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 or the Guarantors. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company or any Guarantor, as applicable, shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (LGI Homes, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation of the each Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be is subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchasers:
(ai) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the The Initial Purchasers shall have received an opinionopinion of Winston & Xxxxxx, dated as of the Closing Date and addressed special counsel to the Initial PurchasersIssuers and Xxxxxxx X. Xxxxxxx, Esq., general counsel of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Dateand Xxxxxx Xxxxxx & Xxxxxxx, the Initial Purchasers shall have received the opinion, in form and substance satisfactory counsel to the Initial Purchasers, dated the Closing Date, substantially in the forms of EXHIBITS B AND C hereto (with customary qualifications and assumptions), as well as letters authorizing the Initial Purchasers to rely on the opinions delivered by counsel to the Issuers in respect of the Closing Date Transaction Documents. In rendering such opinion, Winston & Xxxxxx shall have received and addressed may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchasers and Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers, as they may reasonably request to pass upon such matters. Such counsel may also state that they express no opinion as to the laws of Milbankany jurisdiction other than the federal laws of the United States and the laws of the States of Illinois and New York and the corporate laws of the State of Delaware.
(ii) The Initial Purchasers shall have received an opinion, Tweeddated the Closing Date, of Xxxxxx Xxxxxx & XxXxxxRein- del, counsel for to the Initial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx shall have received and may rely upon such certificates and other documents and information as it they may reasonably request to pass upon such matters. In addition, in rendering their opinion, Xxxxxx Xxxxxx & Xxxxxxx may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(diii) The Initial Purchasers shall have received from Xxxxxx Xxxxxxxx, LLP, independent public accountants for the Independent Accountants a comfort letter or Issuers, "comfort" letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and Xxxxxx Xxxxxx & Xxxxxxx, counsel for to the Initial Purchasers.
(eiv) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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 all material respects on and as of the Closing Date; the Issuers shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described .
(v) There shall not have been any change in the capital stock of the Company or the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company and the Subsidiaries shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents or the Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or any other transac- tions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct in all material respects as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum and the consummation of the transactions contemplated by the Transaction Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or to their knowledge, relating to the Initial Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum, the other Basic Documents or the Transaction Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not auditedin the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
e. At the Closing Date and after giving effect to the consummation of the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents, there ex- ists no Default or Event of Default (as defined in the Indenture).
(ix) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or developmentwaivers of any provision thereof since the date of this Agreement. On the Closing Date, the New Senior Credit Facility shall provide for (i) revolving credit borrowings of not less than $117 million and no information (ii) term loan borrowings of not less than $333 million, which $333 million shall have become known, that, individually or in be borrowed by the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) Company on the Closing Date.
(gx) Subsequent All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and the Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the date of Initial Purchasers and counsel to the Memorandum, Initial Purchasers. The Initial Purchasers and counsel to the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xi) The Company shall apply the proceeds necessary from the issuance and sale of the IssuersNotes and from initial borrowings under the New Senior Credit Facility substantially as described under "Use of Proceeds" in the Final Memorandum.
(xii) [Intentionally omitted].
(xiii) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, dated that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications.
(xiv) On or before the Closing Date, signed on behalf of each Issuer the Initial Purchasers shall have received the Registration Rights Agreement executed by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, Company and such certificate agreement shall be signed by one Authorized Person who in full force and effect at all times from and after the Closing Date.
(xv) The Issuers shall have furnished or caused to be furnished to the managing director Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel to the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be hereunder are subject to the satisfaction accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained in Section 1 hereof or waiver in certificates of any officer of the Company or any of its subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following conditions on or prior to the Closing Dateadditional terms and conditions:
(a) On the Closing Date, the no Initial Purchasers Purchaser shall have received opinionsdiscovered and disclosed to the Company prior to or on such Delivery Date that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, dated as in the reasonable opinion of the Closing Date and addressed counsel to the Initial Purchasers, of each of Linklaters (US is material or omits to state any fact which is material and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for necessary to make the Issuer and/or the Guarantors, as the case may bestatements therein, in the light of the circumstances under which they were made, not misleading;
(b) on each caseDelivery Date, in form and substance satisfactory Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, shall have furnished to the Initial Purchasers in their reasonable discretion.
(b) On written opinion, as counsel to the Closing DateCompany, addressed to the Initial Purchasers and dated such Delivery Date, substantially in the form of Annex 1 attached hereto;
(c) on each Delivery Date, Stoel Rives LLP shall have received an furnished to the Initial Purchasers their written opinion, as special Oregon counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, substantially in the form of Annex 2 attached hereto;
(d) on each Delivery Date, Xxxxxxx X. Xxxxxxxxxx, special patent counsel to the Company, shall have furnished to the Initial Purchasers their written opinion, addressed to the Initial Purchasers and dated such Delivery Date, substantially in the form of Annex 3 attached hereto;
(e) on each Delivery Date, AKD Xxxxxxx van Xxxxxx N.V., special Netherlands counsel to the Company, shall have furnished to the Initial Purchasers their written opinion, addressed to the Initial Purchasers and dated such Delivery Date, substantially in the form of Annex 4 attached hereto;
(f) Xxxxxx & Xxxxxxx LLP, shall have furnished to the Initial Purchasers their written opinion, as of the Closing Date and addressed counsel to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory addressed to the Initial Purchasers in their reasonable discretion.
(c) On the Closing and dated such Delivery Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers;
(g) at the Delivery Date, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Disclosure Package or the Final Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the Applicable Time), any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Representative shall have received a certificate of the Chief Executive Officer and President of the Company and of the Executive Vice President and Chief Financial Officer of the Company, dated as of the Closing Date and addressed Delivery Date, to the Initial Purchaserseffect that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of Milbankthe Delivery Date, Tweed, Xxxxxx & XxXxxx, counsel for and (iii) the Initial Purchasers, Company has complied with respect all agreements and satisfied all conditions on its part to certain legal matters relating be performed or satisfied at or prior to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.Delivery Date;
(dh) The Initial Purchasers at the time of the execution of this Agreement, the Representative shall have received from the Independent Accountants Deloitte & Touche LLP a comfort letter or letters dated the date hereof and the Closing Datesuch date, in form and substance satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other Initial Purchasers containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Initial Purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum;
(i) at the Delivery Date, the Representative shall have received from Deloitte & Touche LLP a letter, dated as of the Delivery Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Delivery Date;
(j) the Indenture shall have been duly executed and delivered by the Company and the Trustee and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee;
(k) the Company and the Representative shall have executed and delivered the Registration Rights Agreement (in form and substance reasonably satisfactory to the Initial Purchasers) and the Registration Rights Agreement shall be in full force and effect;
(l) at the First Delivery Date, the Notes shall have been approved for designation as a PORTAL security;
(m) subsequent to the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Notes, if any, by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes;
(n) on or prior to the date of this Agreement, the Representative shall have received an agreement substantially in the form of Exhibit A attached hereto signed by the persons listed in Schedule IV attached hereto, and shall have received an agreement substantially in the form of Exhibit B attached hereto signed by Philips Business Electronics International B.V.; and
(o) at the Delivery Date, counsel for the Initial Purchasers shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Notes as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Notes as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and counsel for the Initial Purchasers.
(e) The representations and warranties of the Issuers contained . If any condition specified in this Agreement Section 5 shall be true and correct on not have been fulfilled when and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part required to be performed or satisfied hereunder fulfilled, this Agreement may be terminated by the Representative by notice to the Company at any time at or prior to the Closing applicable Delivery Date; and, and such termination shall be without liability of any party to any other party except as described provided in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof)Section 4 and except that Sections 1, subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)7, there 8 and 9 shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of survive any such occurrence, except any such interference, loss or damage which would not, whether individually or termination and remain in the aggregate, have or be reasonably likely to have a Material Adverse Effectfull force and effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:
Appears in 1 contract
Samples: Purchase Agreement (Fei Co)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law)i) Pxxxxx Gxxxxxxxx LLP, counsel for the Issuer and/or Company and certain of the Subsidiary Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to counsel for the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal as set forth in Exhibit B-1 and Exhibit B-2 hereto and (ii) local counsel for certain of the IssuersSubsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchasers Purchasers, as set forth in their reasonable discretionExhibit C hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Cxxxxx Xxxxxx & XxXxxxRxxxxxx LLP, 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 counsel may also state that, insofar as such opinionopinion involves factual matters, Milbankthey have relied, Tweedto the extent they deem proper, Xxxxxx & XxXxxx upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have received and may rely upon such certificates and other documents and information as it may reasonably request been provided to pass upon such mattersthe Initial Purchasers.
(dc) The Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Subsidiary Guarantors’ 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; the Issuers Company and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; 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 Memorandum (whether or not audited)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 be reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate certificates of the IssuersCompany and each of the Subsidiary Guarantors, dated the Closing Date, signed on behalf of each Issuer the Company or the applicable Subsidiary Guarantor by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company or the applicable Subsidiary Guarantor contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and the Company or the applicable Subsidiary Guarantor has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the 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 to the Company or such Subsidiary Guarantor, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Subsidiary Guarantors and such agreement shall be in full force and effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Indenture, as amended by each of the supplemental indentures, executed by the Company, each of the Subsidiary Guarantors and the Trustee and such agreement shall be in full force and effect.
(j) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(k) The Securities shall be designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD. On or before the Closing Date, the Initial Purchasers and 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company and the Subsidiary Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On The Pricing Disclosure Package and the Closing Date, the Initial Purchasers Final Memorandum shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, be in form and substance reasonably satisfactory to the Initial Purchasers in their reasonable discretionRepresentatives. The Issuer shall have complied with Section 5(a) hereof.
(b) On the Closing Date, the Initial Purchasers shall have received an the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx XxxxxFulbright & Xxxxxxxx L.L.P., in-house legal counsel for the IssuersIssuer, in the form attached hereto as Exhibit A, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers in their reasonable discretionPurchasers.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxxxxx X. Xxxxx, Esq., Senior Vice President, Legal and Strategic Affairs, of the Issuer, in the form attached hereto as Exhibit B, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(d) On the Closing Date, the Representatives shall have received the opinion, in form and substance satisfactory to the Initial PurchasersRepresentatives, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Purchase Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx LLP, shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(de) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants PricewaterhouseCoopers LLP a comfort letter or letters dated the date hereof and the Closing Datehereof, in form and substance satisfactory to counsel for the Initial Purchasers. On the Closing Date, the Initial Purchasers shall have received from PricewaterhouseCoopers LLP a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers which shall refer to the comfort letter dated as of the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof.
(ef) The representations and warranties of the Issuers Issuer contained in this Purchase Agreement shall be true and correct in all material respects on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Issuer’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date; provided, that, solely for the Issuers purposes of determining the satisfaction of the conditions in this Section 7(f), any qualification as to “materiality” or “Material Adverse Effect” contained in any such representation and warranty shall be disregarded; the Issuer shall have performed in all material respects all covenants and agreements and satisfied in all material respects all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)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 be reasonably likely expected to have a Material Adverse Effect.
(fg) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gh) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Issuer or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hi) The Initial Purchasers shall have received a certificate of the IssuersIssuer, dated the Closing Date, signed on behalf of each the Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Issuer contained in this Purchase Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date; provided that, solely for the purposes of determining the satisfaction of the conditions in this Section 7(i)(i), any qualification as to “materiality” or “Material Adverse Effect” contained in any such representation and warranty shall be disregarded, and the Issuer has performed all covenants and agreements and satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and 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 be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(j) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuer and such agreement shall be in full force and effect at all times from and after the Closing Date until its expiration in accordance with its terms, if any.
(k) The Senior Secured Credit Facility shall have been amended by the Amendment which shall be in form and substance reasonably acceptable to the Representatives and the Amended Senior Secured Credit Facilities shall be in full force and effect.
(l) On the Closing Date, the Issuer shall have irrevocably called for redemption all of its 2012 Notes then outstanding and shall have complied with Article 10 of the indenture in respect of such 2012 Notes in order to satisfy and discharge such 2012 Notes. On or before the Closing Date, the Initial Purchasers and 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 Issuer and the Subsidiaries as they shall have theretofore reasonably requested from the Issuer. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Purchase Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Representatives and counsel for the Initial Purchasers. The Issuer shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxxxx & Xxx Xxx XxxxxXxxxx PLLC, in-house legal counsel for the IssuersCompany, in form and substance satisfactory to counsel for the Initial Purchasers and substantially in the form of Exhibit B annexed hereto.
(b) The Initial Purchasers shall have received the opinion of Xxxxxxx Berlin Shereff Xxxxxxxx LLP, in form and substance satisfactory to the Initial Purchasers and substantially in their reasonable discretionthe form of Exhibit C annexed hereto, dated as of the Closing Date and addressed to the Initial Purchasers, with respect to regulatory and related legal matters as the Initial Purchasers may require.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx LLP, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(e) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Guarantors’ 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; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; 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 Memorandum (whether or not audited)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 be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of from the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of Company’s Chief Executive Officer and President or any Issuer organized under Executive Vice President and the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Chief Financial Officer, to the effect that
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the 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 be reasonably likely to have a Material Adverse Effect;
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently); and
(iv) 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, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Notes or the issuance of the Guarantees.
(i) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Guarantors and such agreement shall be in full force and effect at all times from and after the Closing Date.
(j) The Initial Purchasers shall have received each of the Collateral Documents executed by the Company and each other party thereto (each a “Relevant Collateral Party”), and each such document shall be in full force and effect. The Initial Purchasers shall have received a perfection certificate, substantially in the form of Exhibit D hereto, duly completed and executed by the Company and the Guarantors.
(k) In accordance with the terms of the Indenture, the Initial Purchasers and the Trustee shall have received each of the following documents, which shall be reasonably satisfactory in form and substance to the Initial Purchasers, the Trustee and each of their respective counsel with respect to the Pledged Collateral, as appropriate:
(i) policies or certificates of insurance as required by each Collateral Document, which policies or certificates shall bear endorsements of the character required by such Collateral Document;
(ii) UCC, judgment and tax lien searches confirming that the personal property comprising a part of the Collateral is subject to no liens other than Permitted Liens;
(iii) stock or member certificates representing Collateral with duly executed stock powers or other instruments of transfer;
(iv) each other document or instrument required to be delivered pursuant to the Collateral Documents;
(v) a certificate of the Company and the Guarantors, dated the Closing Date, signed on behalf of the Company and the Guarantors by the Company’s Chief Executive Officer and President or any Executive Vice President and the Chief Financial Officer, to the effect that: the Company and the Guarantors have performed all covenants and agreements described in this Section 7(k) and satisfied in all material respects all conditions on their part to be performed or satisfied hereunder.
(l) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(m) The Securities shall have been designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD.
(n) The Initial Purchasers shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company and each of the Subsidiaries in their respective jurisdiction of organization and their good standing in such other jurisdictions as the Initial Purchasers may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(o) Concurrently with the sale of the Securities by the Company and the Guarantors, the Company shall have terminated all obligations and commitments under the Credit Agreement. The Initial Purchasers shall have received all other documents and agreements entered into and received thereunder in connection with the termination of the Credit Agreement, including termination of any liens or security interests in favor of the lenders thereunder. On or before the Closing Date, the Initial Purchasers and 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company and the Subsidiaries shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Us Lec Corp)
Conditions of the Initial Purchasers’ Obligations. The ------------------------------------------------- obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities Notes shall, in their its sole discretion, be subject to the satisfaction or waiver and fulfillment of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the The Initial Purchasers Purchaser shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the a signed opinion, in form and substance satisfactory to the Initial PurchasersPurchaser and Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial Purchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of MilbankMintz, TweedLevin, Cohn, Ferris, Glovsky and Popeo, P.C. ("Mintz Xxxxx"), counsel for the Company, in the form of ----------- Exhibit B hereto. In addition, in rendering their opinion, Mintz, Xxxxx --------- may rely as to matters involving the application of laws of any jurisdiction other than the Commonwealth of Massachusetts or the General Corporation Law of the State of Delaware or federal law, to the extent such counsel deems proper and specifies in such opinion, upon the opinion of other counsel who are reasonably satisfactory to counsel for the Initial Purchaser; provided, however, that Xxxxx Xxxxx shall state that they, the -------- ------- Initial Purchaser and counsel for the Initial Purchaser are justified in relying on such opinion.
(b) The Initial Purchaser shall have received a signed opinion, in form and substance satisfactory to the Initial Purchaser and Xxxxxx Xxxxxx & XxXxxxXxxxxxx, counsel for the Initial PurchasersPurchaser, dated the Closing Date and addressed to the Initial Purchaser, from a local counsel in each jurisdiction in which Mortgaged Property is located, each substantially in the form of Exhibit C hereto. ---------
(c) The Initial Purchaser shall have received a signed opinion, in form and substance satisfactory to the Initial Purchaser, dated the Closing Date and addressed to the Initial Purchaser, of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial Purchaser, with respect to certain legal matters relating to this Agreement Agreement, and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx shall have received received, and may rely upon upon, such certificates and other documents and information as it they may reasonably request re quest to pass upon such matters.
(d) The Initial Purchasers Purchaser shall have received from the Independent Accountants Accountant a comfort letter or letters dated the date hereof and the Closing Date, addressed to the Initial Purchaser, each in form and substance satisfactory to the Initial Purchaser and Ca xxxx Xxxxxx & Xxxxxxx, counsel for the Initial PurchasersPurchaser.
(e) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)the 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 be reasonably likely to have a Material Adverse EffectChange.
(f) The sale of the Securities Notes by the Company hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date as of which information is given in the Final Memorandum, except in each case as described in the Final Memorandum, neither the Company nor any of the Subsidiaries shall have incurred any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the business, condition (financial or other) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, or entered into any transactions whether or not in the ordinary course of business that are material to the business, condition (financial or other) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and there shall not have been any adverse change in the capital stock or long-term indebtedness of the Company or any of the Subsidiaries that is material to the business, condition (financial or other) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole.
(h) Subsequent to the date as of which information is given in the Final Memorandum, the conduct of the business and operations of each the Company or any of the Issuers shall Subsidiaries has not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, decree and, except as otherwise stated thereinin the Final Memorandum, the properties of each the Company or any of the Issuers shall Subsidiaries have not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually singly or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(hi) The Initial Purchasers Purchaser shall have received a certificate of the IssuersCompany, dated the Closing DateDate and addressed to the Initial Purchaser, signed on behalf of the Company by its Chairman, President or any Vice President and the Chief Financial Officer to the effect that:
(i) The representations and warranties of the Company contained in this Agreement are true and correct in all material respects as if made on and as of the Closing Date, and the Company has performed in all material respects all covenants and agreements and satisfied all conditions on its part to be performed or satisfied in connection with this Agreement at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto since the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, to the best knowledge of such officers after due inquiry would have a material adverse effect on the business, condition (financial or other) or results of operations or prospects of the Company;
(iii) Since the date hereof or since the date of which information is given in the Final Memorandum, neither the Company nor any of the Subsidiaries has incurred any liabilities or obligations direct or contingent (other than in the ordinary course of business) that are material to the Company or any of the Subsidiaries or, entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or other) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company or any of the Subsidiaries that is material to the business, condition (financial or other) or results of operations or prospects of the Company and the Subsidiaries at and as of the Closing Date, taken as a whole, except as described by the Final Memorandum.
(iv) The sale of the Notes by the Company has not been enjoined (temporarily or permanently).
(j) The Initial Purchaser shall have received the Registration Rights Agreement executed by the Company and the Registration Rights Agreement shall be in full force and effect at all times from and after the date hereof.
(k) On the Closing Date, the Company shall have delivered to the Initial Purchaser and to the Trustee the following documents and instruments with regard to the Mortgaged Property:
(i) each Issuer Mortgage encumbering the Company's fee interest in the Mortgaged Property, duly executed and acknowledged by two Authorized Persons the owner or holder of such fee interest and otherwise in form for recording in the appropriate recording office of the political subdivision where such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof and such UCC-1 financing statements and other similar statements as are contemplated in respect of such Mortgage by the local counsel opinion delivered with respect thereto, pursuant to Section 7(b) hereof, and any other instruments necessary to grant the interests purported to be granted by the Mortgage under the laws of any applicable jurisdiction, which Mortgage and financing statements and other instruments shall be effective to create a Lien (as defined in the Indenture) on such Mortgaged Property subject to no Liens other than as set forth in Schedule B to the applicable Mortgage;
(ii) with respect to each Mortgage, a policy of title insurance on ALTA Form B (1990) or equivalent (or a commitment to issue such a policy) insuring (or committing to insure) the Lien of the Mortgage as a valid first mortgage Lien on the Real Property in respect of the Notes in an amount not less than the fair market value of such Real Property which policy (or commitment) shall (A) be issued by Chicago Title Insurance Company or another nationally recognized title insurance company reasonably acceptable to the Initial Purchaser, (B) include such reinsurance arrangements (with provisions for direct access) as shall be reasonably acceptable to the Initial Purchaser, (C) have been supplemented by such endorsements, or, where such endorsements are not available at commercially reasonable premium costs, opinion letters of special counsel, architects or other professionals, which counsel, architects or other professionals shall be reasonably acceptable to the Initial Purchaser, as shall be reasonably requested by the Initial Purchaser (including, without limitation, endorsements or opinion letters on matters relating to usury, last dollar, zoning, non-imputation, public road access, contiguity (where appropriate), except that improvements need not be located thereon, survey, variable rate and so-called comprehensive coverage over covenants and restrictions) and (D) contain only such exceptions to title as shall be reasonably agreed to by the Initial Purchaser prior to the Closing Date with respect to such Mortgaged Property;
(iii) with respect to each Mortgaged Property, a survey complying with the minimum detail requirements of the American Land Title Association (as such requirements are in effect on the date of delivery of such survey), except that improvements need not be located thereon, certified to the Trustee, and dated (or redated) not earlier than six months prior to the date of delivery thereof, unless there shall have occurred any exterior change in the property affected thereby during such period, in which event such survey shall be dated or redated to a date after the completion of such change, which survey shall locate all public streets and certify that none of the recorded easements encroach upon the improvements on such Mortgaged Property;
(iv) with respect to the Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as shall reasonably be deemed necessary by the Initial Purchaser in order for the owner or holder of the fee interest to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(v) with respect to the Mortgaged Property, policies or certificates of insurance as required by the Mortgage relating thereto, which policies or certificates shall bear mortgagee endorsements of the character customarily and reasonably required by the Mortgage;
(vi) with respect to each Mortgaged Property, UCC, judgment and tax lien searches confirming that the personal property comprising a part of such Mortgaged Property is subject to no Liens other than as set forth in Schedule B to the applicable Mortgage;
(vii) checks payable to the appropriate public officials in payment of all recording costs and transfer taxes due in respect of the execution, delivery or recording of each Mortgage, together with a check or wire transfer for the title company in payment of its premium search and examination charges, survey costs and any other amounts due in connection with the issuance of its policies (or commitments);
(viii) with respect to the Mortgaged Property, copies of all Leases and Subleases (as defined in the Mortgages), all of which Leases and Subleases shall, to the extent not previously approved in writing by the Initial Purchaser, be reasonably satisfactory to the Initial Purchaser; and
(ix) with respect to the Mortgaged Property, an Officers' Certificate (as defined in the Indenture) stating that (i) there has been issued and is in effect a valid and proper certificate of occupancy or local equivalent if required by the local codes or ordinances, for the use of such Mortgaged Property and (ii) there is not outstanding any citation, violation or similar notice indicating that such Mortgaged Property contains conditions which are not in compliance with local codes or ordinances relating to building or fire safety or structural soundness.
(l) On the Closing Date, the Company shall have delivered to the Initial Purchaser and to the Trustee the Security Agreement, duly executed by the Company, together with the evidence of the filing of appropriate financing statements in each of the offices where such filing is necessary or, in the opinion of the Initial Purchaser, desirable to perfect the Liens created or intended to be created, by the Security Agreement. All filing fees and taxes in connection with such filings shall have been paid and the Initial Purchaser shall have received evidence satisfactory to it of such filings and payments, including in the case of any Issuer organized under financing statements, the laws acknowledgment copies of all such financing statements bearing evidence of filing in each such office.
(m) On the Closing Date, the Company shall have delivered to the Initial Purchaser, the Intercreditor Agreement among the Company, the Trustee and NationsBank, N.A. duly executed by the Company.
(n) On the Closing Date, the Company shall have delivered or cause to be delivered to the Initial Purchaser such documentation and instruments as may be necessary or required to effectuate the termination of the NetherlandsLien of the Revolver Lender on the Pledged Collateral and Mortgaged Property, including, without limitation, mortgage releases, UCC financing statements and amendments to the existing Revolving Credit Facility. On or before the Closing Date, the Initial Purchaser and Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial Purchaser, shall have received such further documents, certificates and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company as they shall reasonably request from the Company. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Section 7 will comply with the provisions hereof only if they are reasonably satisfactory in all respects to the Initial Purchaser. The Company shall furnish to the Initial Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments and such other documents, in which case, such certificate quantities as the Initial Purchaser shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Securities. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be are subject to the satisfaction absence from any certificates, opinions, written statements or waiver letters furnished to the Initial Purchaser pursuant to this Section 7 of any misstatement or omission and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchaser:
(aA) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers Purchaser shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, in its sole discretion, dated as of the Closing Date and addressed Date, of Fulbright & Xxxxxxxx, L.L.P., counsel to the Company.
(B) The Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, 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, Milbank, Tweed, Xxxxxx & XxXxxx Purchaser shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Datean opinion, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser, in its sole discretion, dated the Closing Date, of Xxxxxx Xxx-Xxx Xxxx, LLC and Xxxxx X. Xxxxxxx, Esq., intellectual property counsel to the Company.
(eC) The Initial Purchaser shall have received a comfort letter, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, dated the date hereof, of Ernst & Young LLP, registered independent auditor of the Company.
(D) With respect to the comfort letter of Xxxxx & Young LLP referred to in the preceding subsection, the Initial Purchaser shall have received a “bring-down” letter of Xxxxx & Young LLP, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, dated the Closing Date.
(E) The Initial Purchaser shall have received an opinion, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, dated the Closing Date, of DLA Piper US LLP, counsel to the Initial Purchaser.
(F) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on (in the case of representations and warranties qualified as to materiality) or true and correct in all material respects (in the case of the date hereof all other representations and on and as of the Closing Date as if made warranties) on and as of the Closing Date; , and the statements of any Authorized Person 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; the Issuers Company shall have performed complied in all covenants and material respects with all covenants, agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(G) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by this Agreement or any of the other Offering Documents shall have been enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchaser relating to the issuance or the trading of the Securities or the Initial Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
(H) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change in, or affecting the business, condition (financial or other), properties or results of operations of, the Company not disclosed in the Offering Memorandum that is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the Offering on the terms and in the manner contemplated by the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any of its officers or directors that makes any statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the reasonable judgment of the Initial Purchaser, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein not misleading.
(I) The Initial Purchaser shall have received a certificate, dated the Closing Date and signed by the President and Chief Financial Officer of the Company, to the effect that to the best of his knowledge:
(i) All of the representations and warranties of the Company set forth in this Agreement are true and correct (in the case of representations and warranties qualified as to materiality) or true and correct in all material respects (in the case of all other representations and warranties) on and as of the Closing Date, and all covenants agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
(ii) No event has occurred and is continuing, as a result of which the Offering Memorandum including all exhibits and attachments thereto would contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances existing at the time it is delivered to the Initial Purchaser, not misleading.
(iii) The issuance and sale of the Securities pursuant to this Agreement and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officer’s knowledge, threatened against the Company relating to the issuance or the trading of the Securities or the Initial Purchaser’s activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
(iv) Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (1) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties or results of operations of the Company, not contemplated by the Offering Memorandum, except for any change or prospective change that would not reasonably be expected to result in a Material Adverse Effect upon the Company, or (2) any event or development relating to or involving the Company or any of its officers or directors that, in the judgment of the Initial Purchaser, makes any statement made in the Offering Memorandum untrue or that requires the making of any addition to or change in the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein not misleading.
(v) At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Memorandum there shall exist no Default or Event of Default (as defined in the Indenture).
(J) There shall have been confirmed sales to the Subsequent Purchasers agreeing to fund a total of $60,000,000, none of the Subsequent Purchasers shall have actually made or threatened to make any amendments, alterations, modifications, withdrawals, waivers or breaches with respect to its commitment to purchase the Notes and Warrants, and the Initial Purchaser shall have no reasonable good faith belief that such commitments or purchases will not be funded.
(K) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchaser) and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or developmentwaivers of any provision thereof since the date of this Agreement.
(L) All corporate proceedings taken in connection with the issuance of the Notes and Warrants and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance satisfactory to them.
(M) The Notes shall be eligible for clearance on DTC.
(N) At the Closing Date, the Company and the Trustee shall have entered into the Indenture, in form and substance satisfactory to the Initial Purchaser, in its reasonable discretion, and no information the Initial Purchaser shall have become knownreceived counterparts, thatdated the Closing Date and executed by each of the parties thereto and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(O) At the Closing Date, each of the Offering Documents shall have been executed and delivered by all parties thereto.
(P) There are no pending or threatened legal or governmental proceedings to which the Company is a party or of which any property of the Company is the subject, which, the Initial Purchaser believes, in its reasonable discretion, if determined adversely to the Company, would individually or in the aggregate, has or would be reasonably likely to aggregate have a Material Adverse Effect.
(f) The sale Effect on the financial position or results of operations of the Securities hereunder shall not be enjoined (temporarily Company taken as a whole. All such opinions, certificates, letters, schedules, documents or permanently) on instruments delivered pursuant to this Agreement will comply with the Closing Date.
(g) Subsequent provisions hereof only if they are reasonably satisfactory to the date of Initial Purchaser and counsel to the Memorandum, Initial Purchaser. The Company shall furnish to the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any Initial Purchaser such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be is subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchaser:
(ai) On the Closing Date, the The Initial Purchasers Purchaser shall have received opinions, dated as an opinion of the Closing Date and addressed counsel to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, Issuers in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On Purchaser and Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchaser, dated the Closing Date, of Xxxxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx LLP, substantially in the form of EXHIBIT B hereto. In rendering such opinion, Xxxxxxxxx Xxxxxxx Xxxxx & Xxxxxxxx LLP shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchasers Purchaser and Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchaser, as they may reasonably request to pass upon such matters.
(ii) The Initial Purchaser shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinionof Xxxxxx Xxxxxx & Xxxxxxx, in form and substance satisfactory counsel to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Initial PurchasersPurchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx shall have received and may rely upon such certificates and other documents and information as it they may reasonably request to pass upon such matters. In addition, in rendering their opinion, Xxxxxx Xxxxxx & Xxxxxxx may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(diii) The Initial Purchasers Purchaser shall have received from Coopers & Xxxxxxx L.L.P. and KPMG Peat Marwick LLP, independent public accountants for the Independent Accountants a comfort letter or St. Louis Station and Channel 32, Incorporated, respectively, "comfort" letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser and Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchaser.
(eiv) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described .
(a) There shall not have been any change in the capital stock or partners or members equity of the Company or any of the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company, the Subsidiaries and the Acquisition Stations shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, other than those reflected in the Final Memorandum.
(vi) None of the Transactions shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order with respect thereto shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers or the Acquisition Stations or against the Initial Purchaser relating to any of the Transactions.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchaser, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries or any of the Acquisition Stations that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers and their counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the president and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement and the Final Memorandum and the consummation of the Transactions have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or in connection with any of the other Transactions.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, not contemplated by the Final Memorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries or any Acquisition Station that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(a) There has not been any change in the capital stock or members or partners equity of the Company or any of the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company, the Subsidiaries, and the Acquisition Stations have no liabilities or obligations, contingent or otherwise (whether or not auditedin the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, both before and after giving effect to our Acquisition, other than those reflected in the Final Memorandum.
(ix) Each of the Acquisition Agreements and the St. Louis LMA shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or waivers of any provision thereof since the date of this Agreement (unless consented to in writing by the aggregate, has or would be reasonably likely to have a Material Adverse EffectInitial Purchaser).
(fx) The sale All proceedings taken in connection with the issuance of the Securities hereunder and the transactions contemplated by this Agreement and the other Basic Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial Purchaser and counsel to the Initial Purchaser.
(gxi) Subsequent ACME Parent shall have contributed and assigned to ACME Television all of ACME Parent's assets and rights relating to the date of the MemorandumAcquisition Agreement, the conduct St. Louis LMA and the Acquisition Stations pursuant to documents satisfactory to the Initial Purchaser and its counsel.
(xii) The Company shall have received at least $21.7 million aggregate cash proceeds from the Parent Equity Contribution.
(xiii) The ACME Television Offering shall have been consummated with gross proceeds to ACME Television of the business and operations of each of the Issuers at least $115,000,000.
(xiv) There shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or any announcement by any court or governmental action"nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, order or decree, and, except as otherwise stated therein, the properties of each that (A) it is downgrading its rating assigned to any debt securities of the Issuers shall Company or any of its Subsidiaries, or (B) it is reviewing its rating assigned to any debt securities of the Company or any of its Subsidiaries with a view to possible downgrading, or with negative implications, or direction not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectdetermined.
(hxv) The Initial Purchasers Purchaser shall have received a certificate the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect.
(xvi) The Initial Purchaser shall have received the Membership Unitholders Agreement executed by the Company and ACME Parent and such agreement shall be in full force and effect.
(xvii) The Trustee shall have received the Pledge Agreement duly executed by the Pledgors, together with (i) certificates representing all of the Issuersoutstanding membership units of ACME Television and all of the outstanding capital stock, dated partnership interests or membership units, as the Closing Datecase may be, signed on behalf owned directly by the Company of each Issuer by two Authorized Persons Subsidiary (except collectively, the "Pledged Securities") and (ii) UCC-1 Financing Statements with respect to each Pledgor to be filed in the case State of any Issuer organized under New York, the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director state of such Issuer), Pledgor's incorporation or formation and the state of such Pledgor's principal place of business.
(xviii) The Issuers shall have furnished or caused to be furnished to the effect that:Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested.
Appears in 1 contract
Samples: Purchase Agreement (Acme Intermediate Holdings LLC)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsthe opinion and negative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg Milbank, Tweed, Xxxxxx & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law)XxXxxx LLP, counsel for the Issuer and/or the Guarantors, as the case may be, in each caseCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers in their reasonable discretionPurchasers. In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received an the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx XxxxxXxxxx Xxxx LLP, in-house legal regulatory counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers in their reasonable discretionPurchasers.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance reasonably satisfactory to the Initial PurchasersRepresentative, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx LLP, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package and other customary matters. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum and other customary matters.
(e) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) by a court of competent jurisdiction on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Executive Vice President or the managing director of such Issuer)Chief Financial Officer or Chief Legal Officer, to the effect that:
(i) the representations and warranties of the Company contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) since the date hereof, no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently) by a court of competent jurisdiction.
(h) On the Closing Date, the Issuer shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof. On or before the Closing Date, the Initial Purchasers and 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the each Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be is subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Obligors of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as an opinion of the Closing Date and addressed counsel to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, Obligors in form and substance satisfactory to the Initial Purchasers and Cahill Gordon & Reindel, counsel to the Initial Purchasers, daxxx xxx Xxxxing Xxxx, of Dickstein Shapiro Morin & Oshinsky LLP, substantially in their reasonable discretiontxx xxxx xf XXXXXXX B xxxxto. Xx xxxxering such opinion, Dickstein Shapiro Morin & Oshinsky LLP shall have received and max xxxx xxxx suxx xxrtixxxxxxx and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchasers and Cahill Gordon & Reindel, counsel to the Initial Purchasers, as xxxx xxx xxxsonxxxx xxquest to pass upon such matters.
(bii) On the Closing Date, the The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed Date, of Cahill Gordon & Reindel, counsel to the Initial Purchasers, xxxx xxxxxxt tx xxx sufficiency of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, 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, Milbank, Tweed, Xxxxxx Cahill Gordon & XxXxxx Reindel shall have received and may rely upon such certificates xxxx xxxx xertxxxxxxxs and other documents and information as it they may reasonably request to pass upon such matters. In addition, in rendering their opinion, Cahill Gordon & Reindel may state that their opinion is limitxx xx xxxxxxx of Xxx Xxrk, Delaware corporate and federal law.
(diii) The Initial Purchasers shall have received from Coopers & Lybrand L.L.P. and KPMG Peat Marwick LLP, independent public accouxxxxxx for the Independent Accountants a comfort letter or St. Louis Station and Channel 32, Incorporated, respectively, "comfort" letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and Cahill Gordon & Reindel, counsel for to the Initial Purchasers.
(exx) The representations Xxx rexxxxxxxations and warranties of the Issuers Obligors contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers Obligors shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described .
(a) There shall not have been any change in the capital stock or partners or members equity of the Company or any of the Subsidiaries or any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company, the Subsidiaries and the Acquisition Stations shall not have any liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, other than those reflected in the Final Memorandum.
(vi) None of the Transactions shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order with respect thereto shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Obligors or the Acquisition Stations or against the Initial Purchasers relating to any of the Transactions.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, not contemplated by the Final Memorandum that, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries or any of the Acquisition Stations that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Obligors and their counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(viii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and the chief financial officer of the Company, to the effect that:
a. All of the representations and warranties of the Obligors set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Obligors have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. The issuance and sale of the Securities pursuant to this Agreement and the Final Memorandum and the consummation of the Transactions have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Obligors relating to the issuance of the Securities or in connection with any of the other Transactions.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, both before and after giving effect to each Acquisition, not contemplated by the Final Memorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries or any Acquisition Station that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(a) There has not been any change in the capital stock or members or partners equity of the Company or any of the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company, the Subsidiaries, and the Acquisition Stations have no liabilities or obligations, contingent or otherwise (whether or not auditedin the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, both before and after giving effect to our Acquisition, other than those reflected in the Final Memorandum.
(ix) Each of the Acquisition Agreements and the St. Louis LMA shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or waivers of any provision thereof since the date of this Agreement (unless consented to in writing by the aggregate, has or would be reasonably likely to have a Material Adverse EffectInitial Purchasers).
(fx) The sale All proceedings taken in connection with the issuance of the Securities hereunder and the transactions contemplated by this Agreement and the other Basic Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial Purchasers and counsel to the Initial Purchasers.
(gxi) Subsequent ACME Parent shall have contributed and assigned to the date Company all of ACME Parent's assets and rights relating to the MemorandumAcquisition Agreement, the conduct of St. Louis LMA and the business Acquisition Stations pursuant to documents satisfactory to the Initial Purchasers and operations of each of their counsel.
(xii) The Company shall have received at least $59.9 million aggregate cash proceeds from the Issuers Intermediate Equity Contribution and the Parent Equity Contribution.
(xiii) There shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or any announcement by any court or governmental action"nationally recognized statistical rating organiza- tion," as defined for purposes of Rule 436(g) under the Securities Act, order or decree, and, except as otherwise stated therein, the properties of each that (A) it is downgrading its rating assigned to any debt securities of the Issuers shall Company or Acme Intermediate, or (B) it is reviewing its rating assigned to any debt securities of the Company or Acme Intermediate with a view to possible downgrading, or with negative implications, or direction not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectdetermined.
(hxiv) The Initial Purchasers shall have received a certificate of the Issuers, dated Registration Rights Agreement executed by the Obligors and such agreement shall be in full force and effect at all times from and after the Closing Date, signed on behalf of each Issuer by two Authorized Persons .
(except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate xv) The Obligors shall have furnished or caused to be signed by one Authorized Person who shall be the managing director of such Issuer), furnished to the effect that:Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx XxxxxDechert LLP, in-house legal counsel for the IssuersCompany, in form and substance reasonably satisfactory to the Initial Purchasers in their reasonable discretionRepresentative. In rendering such opinion, Dechert LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx LLP, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The On the date hereof, the Initial Purchasers shall have received from each of the Independent Accountants a customary comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited or pro forma financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Xxxxx Xxxxxxxx LLP a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited or pro forma financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Guarantors’ 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; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 be reasonably likely expected to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date, provided that each such representation and warranty that contains a materiality qualification in the text of such representation or warranty is true and correct in all respects, and the Company and the Guarantors have performed all covenants and agreements in all material respects and satisfied all conditions on their part to be performed or satisfied hereunder (unless otherwise waived by the Initial Purchasers) at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company, that, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Indenture and the Registration Rights Agreement executed by the Company and the Guarantors and such agreements shall be in full force and effect and in form and substance reasonably satisfactory to the Representative.
(i) On or prior to the Closing Date, the Credit Facility Amendments shall have been entered into on substantially the same terms and conditions described in the Pricing Disclosure Package providing for the issuance of up to $550.0 million in aggregate principal amount of Notes and, to the extent reasonably requested, the Initial Purchasers shall have received all documents and agreements entered into in connection therewith. On or before the Closing Date, the Initial Purchasers and 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, the Guarantors 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company and the Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Griffon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsthe opinion and negative assurance statement, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law)Xxxxxxxx LLP, counsel for the Issuer and/or the Guarantors, as the case may be, in each caseCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers substantially as set forth in their reasonable discretionExhibit A hereto. In rendering such opinion and negative assurance statement, such counsel may rely as to matters of fact, to the extent such counsel deems proper, on certificates or other written statements of official jurisdictions having custody of documents respecting the corporate existence or good standing of the entities referred to in such opinion and negative assurance statement.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date opinion and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinionnegative assurance statement, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx llp, 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, Milbank, Tweedopinion and negative assurance statement, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx llp shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The On the date hereof, following execution of this Agreement, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof hereof, in their capacity as officers of the Company, and not in their individual capacity, shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements included (or incorporated by reference) in such Memorandum (whether or not audited)Pricing Disclosure Package and the 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 be reasonably likely expected to have a Material Adverse Effect.
(e) Subsequent to the date of the most recent financial statements included (or incorporated by reference) in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), except as described (or incorporated by reference) in the Pricing Disclosure Package and the Final Memorandum, neither the Company nor any of its 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 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 expected to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of from the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, President or any Executive or Senior Vice President and the Chief Financial Officer or Corporate Controller, in which case, such certificate shall be signed by one Authorized Person who shall be their capacity as officers of the managing director of such Issuer)Company and not in their individual capacity, to the effect that:
(i) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects), and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements included (or incorporated by reference) in the Pricing Disclosure Package and 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 be reasonably expected to have a Material Adverse Effect.
(g) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Company and such agreement shall be in full force and effect.
(h) On the Closing Date, (i) the Initial Purchasers shall have received the Escrow Agreement executed by the Company, the Trustee and the Escrow Agent and such agreement shall be in full force and effect; (ii) the Company shall have deposited the Escrow Property equal to the Escrow Redemption Amount with the Escrow Agent in accordance with the Escrow Agreement; and (iii) the Trustee shall have a first-priority security interest in the Escrow Account and the Escrow Property pursuant to the Escrow Agreement. On or before the Closing Date, the Initial Purchasers and 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 as they shall have heretofore reasonably requested from the Company for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligation obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be Notes are subject to the satisfaction or waiver accuracy, when made and on and as of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(i) The Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, opinions in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance reasonably satisfactory to the Initial Purchasers, dated as the Closing Date, of Xxxxxx and Xxxxx, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the Closing Date General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and addressed covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E hereto.
(ii) The Initial Purchasers shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for dated the Initial PurchasersClosing Date, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(diii) The Initial Purchasers shall have received from Xxxxx Xxxxxxxx, independent registered public accountants for the Independent Accountants a comfort letter or letters dated Company, on each of the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for to the Initial Purchasers, letters dated the date hereof and the Closing Date confirming that is an independent registered public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder 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 or incorporated by reference in the Disclosure Package and the Offering Memorandum.
(eiv) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(v) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of which, in the judgment of the Initial Purchasers, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(viii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Disclosure Package and the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fx) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities hereunder shall not be enjoined as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(temporarily or permanentlyxii) on At the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of Company and the business Trustee shall have entered into the Indenture and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the IssuersNotes will be duly listed, dated subject to notice of issuance, for quotation on Nasdaq. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except provisions hereof only if they are reasonably satisfactory in all material respects to the case of any Issuer organized under Initial Purchasers and counsel to the laws of Initial Purchasers. The Company shall furnish to the Netherlands, in which case, Initial Purchasers such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the following opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each (i) Robert M. Hall, Senior Vice President of Linklaters Business Affairs and General Xxxxxxx xx xxx Company, substantially in the form set forth in Exhibit B, (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg ii) Weil, Gotshal & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); StroeterManges LLP, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), securities counsel for the Issuer and/or Company, substantially in the Guarantorsfxxx xxt forth in Exhibit C, as and (iii) Latham & Watkins, special regulatory counsel for the case may beCompany, substantxxxxx in xxx xxxm set forth in Exhibit D, in each case, in form with usual and substance satisfactory customary limitations and exceptions reasonably acceptable to the Initial Purchasers in their reasonable discretionRepresentatives.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Cahill Gordon & XxXxxxReindel, counsel for the Initial Purchasers, with respect to certain legal matters respxxx xx xxxxxxn lxxxx xxtters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx Cahill Gordon & XxXxxx Reindel shall have received and may rely upon such certificates and other documents cerxxxxxxxxx xxx otxxx xxxuments and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Issuers' 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; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; 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 Memorandum (whether or not audited)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 be reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Issuers contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and the Issuers have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the 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), to the knowledge of such officer after due investigation, no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) The Representatives shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect.
(i) The Company and Finance Co. shall have entered into the indemnification agreement contemplated by the Final Memorandum and the terms and conditions of such indemnification agreement shall conform in all material respects to the description thereof contained in the Final Memorandum and such agreement shall be in full force and effect.
(j) The Initial Purchasers shall have received the intellectual property license agreement between the Company and Hughes contemplated by the Final Memorandum and such agreement shall bx xx xull force and effect and shall not have been amended.
(k) The Initial Purchasers shall have received a solvency certificate, in form and substance reasonably satisfactory to the Representatives, from the Chief Financial Officer of the Company setting forth such officer's certification that the representation made under Section 2(dd) hereof is true and accurate. The Initial Purchasers and 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law)i) Pxxxxx Gxxxxxxxx LLP, counsel for the Issuer and/or Company and certain of the Subsidiary Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to counsel for the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal as set forth in Exhibit B-1 and Exhibit B-2 hereto and (ii) local counsel for certain of the IssuersSubsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchasers Purchasers, as set forth in their reasonable discretionExhibit C hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Cxxxxx Xxxxxx & XxXxxxRxxxxxx LLP, 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 counsel may also state that, insofar as such opinionopinion involves factual matters, Milbankthey have relied, Tweedto the extent they deem proper, Xxxxxx & XxXxxx upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have received and may rely upon such certificates and other documents and information as it may reasonably request been provided to pass upon such mattersthe Initial Purchasers.
(dc) The Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Subsidiary Guarantors’ 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; the Issuers Company and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)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 be reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate certificates of the IssuersCompany and each of the Subsidiary Guarantors, dated the Closing Date, signed on behalf of each Issuer the Company or the applicable Subsidiary Guarantor by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company or the applicable Subsidiary Guarantor contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and the Company or the applicable Subsidiary Guarantor has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or such Subsidiary Guarantor, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Subsidiary Guarantors and such agreement shall be in full force and effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Company, each of the Subsidiary Guarantors and the Trustee and such agreement shall be in full force and effect.
(j) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(k) The Securities shall be designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD. On or before the Closing Date, the Initial Purchasers and 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company and the Subsidiary Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, hereunder shall be subject to the satisfaction or waiver continuing accuracy of the representations and warranties of the Company herein as of the date hereof and as of the Closing Date as if they had been made on and as of the Closing Date; and the performance by the Company on and as of the Closing Date of its covenants and obligations hereunder and to the following conditions further conditions:
(a) The Initial Purchasers shall not have advised the Company that the Offering Memorandum, or any supplement or amendment thereto, contains an untrue statement of fact which, in the Initial Purchasers' opinion, is material, or omits to state a fact which, in the Initial Purchasers' opinion, is material and is required to be stated therein or is necessary to make the statements, in light of the circumstances under which they were made, not misleading. No order suspending the sale of the Securities in any jurisdiction shall have been issued on the Closing Date and no proceedings for that purpose shall have been instituted or shall be contemplated.
(b) On or prior to the Closing Date:
(a) On the Closing Date, Date the Initial Purchasers shall have received opinionsfrom Kellxx Xxxx & Xarrxx XXX such opinion or opinions with respect to the organization of the Company, dated the validity of the Debentures, the Conversion Shares, the Offering Memorandum and other related matters as of the Initial Purchasers may request and Kellxx Xxxx & Xarrxx XXX shall have received such papers and information as they request to enable it to pass upon such matters.
(c) On the Closing Date and the Initial Purchasers shall have received the favorable opinion of Rubix Xxxx Xxxxx Xxxstant & Friexxxx, xxunsel to the Company, dated the Closing Date, addressed to the Initial Purchasers, of each of Linklaters (US Purchasers and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Kellxx Xxxx & XxXxxx, 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, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(e) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Xarrxx XXX, to the effect that:
(A) the Company and each of the Subsidiaries has been duly organized and the Company and each of the Subsidiaries is validly existing as a corporation, partnership or limited liability company, as the case may be, in good standing under the laws of its jurisdiction of formation, (B) the Company and each of the Significant Subsidiaries is duly qualified and in good standing as a foreign corporation (or, with respect to the Partnership, as a foreign partnership and with respect to the Limited Liability Company, as a foreign limited liability company) in each jurisdiction identified in a schedule to such opinion and (C) the Company and each of the Subsidiaries has all requisite power and authority to own or lease its properties and conduct its business as described in the Offering Memorandum;
ii) the Company's authorized capital stock is as set forth under the heading "Capitalization" in the Offering Memorandum, subject to such adjustments therein as are expressly contemplated by the Offering Memorandum; all of the outstanding shares of capital stock of each of the Subsidiaries are owned by the Company, directly or through one or more Subsidiaries, in each case free and clear of any liens, charges, claims, pledges, security interests or encumbrances of any kind whatsoever other than as disclosed in the Offering Memorandum;
iii) except as disclosed in the Offering Memorandum, to the best of such counsel's knowledge, neither the Company nor any of the Subsidiaries is a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities of the Company or any of the Subsidiaries, except for this Agreement and as described in the Offering Memorandum, the Indenture, the Securities and all other securities issued or issuable by each of the Company or any of the Subsidiaries which are described in the Offering Memorandum conform, or when issued and paid for, will conform in all material respects to the descriptions thereof contained in the Offering Memorandum; all issued and outstanding capital stock of the Company or any of the Subsidiaries has been duly authorized and validly issued and is fully paid and non-assessable; to the best of such counsel's knowledge, none of such securities were issued in violation of the preemptive rights of any securityholder of the Company or any of the Subsidiaries or similar contractual rights granted by the Company or any of the Subsidiaries or applicable securities laws; the Debentures have been duly authorized and, when validly authenticated, issued, delivered and paid for by the Initial Purchasers in the manner contemplated by this Agreement, will be duly authorized, validly issued and outstanding obligations of the Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms, except to the extent that enforceability thereof may be limited by (1) bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors' rights generally; or (2) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); the Indenture conforms in all material respects to the description thereof set forth in the Offering Memorandum; the shares of Common Stock issuable upon conversion of the Debentures have been duly authorized and reserved for issuance upon conversion and, when issued, delivered and paid for in accordance with the terms of the Indenture, will be validly issued, fully paid and nonassessable; and the holders of outstanding securities of the Company are not entitled to any preemptive rights with respect to the Securities; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly and validly taken; and the certificates representing the Securities are in due and proper form; upon the issuance and delivery pursuant to this Agreement and the Indenture of the Debentures to be sold by the Company hereunder, the Initial Purchasers will acquire good and marketable title thereto free and clear of any pledge, lien, charge, claim, encumbrance, pledge, security interest or other restriction or equity of any kind whatsoever;
iv) the descriptions in the Offering Memorandum of agreements and documents to which the Company or any of the Subsidiaries is a party or by which any of them or their respective properties are bound, including any such agreement or document incorporated by reference into the Offering Memorandum, or of any statutes, are accurate in all material respects and fairly present the subject matter thereof; to the best of such counsel's knowledge, there is no action, arbitration, suit, or other proceeding pending or threatened in writing or any judgments outstanding against the Company or any of the Subsidiaries or involving the properties or business of the Company or any of the Subsidiaries which (A) questions the validity of the capital stock of the Company or any of the Subsidiaries or of this Agreement, the Indenture, the Registration Rights Agreement or of any action taken or to be taken by the Company or any of the Subsidiaries pursuant to or in connection with any of the foregoing or (B) except as disclosed in the Offering Memorandum, could have a Material Adverse Effect;
v) the Company has the corporate power and authority to execute, deliver and perform each of this Agreement, Indenture and the Registration Rights Agreement and to consummate the transactions provided for herein and therein; the execution and delivery of this Agreement, the Indenture and the Registration Rights Agreement have been duly authorized by all requisite corporate action on the part of the Company and each of this Agreement, the Indenture and the Registration Rights Agreement has been duly executed and delivered by the Company, and, assuming due authorization, execution and delivery by each other party thereto, constitutes a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms; except to the extent that enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx XxxxxDechert LLP, in-house legal counsel for the IssuersCompany, in form and substance reasonably satisfactory to the Initial Purchasers in their reasonable discretionRepresentative. In rendering such opinion, Dechert LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx llp, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx llp shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Company Independent Accountants a customary comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited or pro forma financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Company Independent Accountants a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited or pro forma financial information in the Final Memorandum.
(d) On the date hereof, the Initial Purchasers shall have received from the ClosetMaid Independent Accountants a customary comfort letter dated the date hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the ClosetMaid Independent Accountants a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(e) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Guarantors’ 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; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 be reasonably likely expected to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which caseChief Executive Officer, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct in all material respects on and as of the Time of Execution and on and as of the Closing Date, provided that each such representation and warranty that contains a materiality qualification in the text of such representation or warranty is true and correct in all respects, and the Company and the Guarantors have performed all covenants and agreements in all material respects and satisfied all conditions on their part to be performed or satisfied hereunder (unless otherwise waived by the Initial Purchasers) at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company, that, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect, except as described in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto); and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(i) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Guarantors and such agreement shall be in full force and effect and in form and substance reasonably satisfactory to the Representative. On the Closing Date, the Indenture shall continue to be in full force and effect and the Initial Purchasers shall have received an executed copy of the Authentication Order (as defined in the Indenture) required by Section 2.02 of the Indenture with respect to the issuance of the New Notes.
(j) On the date hereof, the Initial Purchasers shall have received a certificate of the Company, signed on behalf of the Company by its Chief Financial Officer regarding ClosetMaid’s financial information for the year ended September 30, 2017, substantially in the form attached hereto as Exhibit C.
(k) On the Closing Date, the Initial Purchasers shall have received a certificate of the Company, signed on behalf of the Company by its Chief Financial Officer regarding ClosetMaid’s financial information for the year ended September 30, 2017, substantially in the form attached hereto as Exhibit C. On or before the Closing Date, the Initial Purchasers and 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, the Guarantors 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company and the Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Griffon Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsfrom the Great Wolf Parties the Joinder Agreement, dated as of the Closing Date and addressed to the Initial Purchasers, of executed by each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each caseGreat Wolf Parties, in form and substance satisfactory to the Initial Purchasers and in their reasonable discretion.the form substantially set forth in Exhibit A.
(b) On the Closing Date, the Initial Purchasers shall have received an from Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel to the Issuers, (x) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers and in the form set forth in Exhibit B and (y) a disclosure letter, dated as of Xxx Xxx Xxxxx, in-house legal counsel for the IssuersClosing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers and in their reasonable discretionthe form set forth in Exhibit C.
(c) On the Closing Date, the Initial Purchasers shall have received from Xxxxx & Xxxxx Co., L.P.A., Ohio counsel to the Issuers, the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers and in the form set forth in Exhibit D.
(d) On the Closing Date, the Initial Purchasers shall have received from XxXxxxxxx Will & Xxxxx LLP, Texas counsel to the Issuers, the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers.
(ce) On the Closing Date, the Initial Purchasers shall have received from Xxxxxxx & Xxxxxxx, P.C., Virginia counsel to the Issuers, the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, in form and substance satisfactory to the Initial Purchasers and in the form set forth in Exhibit E.
(f) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxxXxxxxxx LLP, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Purchase Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx Xxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dg) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information contained in or incorporated by reference in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information contained in or incorporated by reference in the Final Memorandum.
(eh) The representations and warranties of the Issuers Great Wolf Parties contained in this Purchase Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person Great Wolf Party’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; the Issuers Great Wolf Parties shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has had or would be reasonably likely to have a Material Adverse Effect.
(fi) The sale of the Securities hereunder shall have not be been enjoined (temporarily or permanently) on the Closing Date.
(gj) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct of the no Great Wolf Group Member shall have sustained any loss or interference with respect to its business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have had or would be reasonably likely to have a Material Adverse Effect.
(hk) The Initial Purchasers shall have received a certificate of the Issuerseach Great Wolf Party, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except Great Wolf Party by, in the case of any Issuer organized under the laws GWR, its Chairman of the NetherlandsBoard, President or any Senior Vice President and the Chief Financial Officer, or in which case, such certificate shall be signed the case of each other Great Wolf Party by one Authorized Person who shall be the managing director an authorized officer of such Issuer)Great Wolf Party or its general partner or sole member as applicable, to the effect that:
(i) the representations and warranties of such Great Wolf Party contained in this Purchase Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and such Great Wolf Party has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final 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 be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(l) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Great Wolf Parties and such agreement shall be in full force and effect at all times from and after the Closing Date.
(m) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Great Wolf Parties and such agreement shall be in full force and effect at all times from and after the Closing Date.
(n) On the Closing Date, the Initial Purchasers shall have received (i) the Security Documents and each other document or instrument required to cause the Guarantees by the Grantors to be secured by first priority liens and security interests on the Collateral to the extent and in the manner provided for in the Indenture and the Security Documents and as described in the Pricing Disclosure Package, in each case executed by the parties thereto, (ii) evidence that all of the liens on the Collateral other than those liens permitted by the Indenture and the applicable Security Documents have been released (which with respect to any mortgages currently encumbering any of the Collateral, shall be deemed satisfied so long as the title insurer is irrevocably committed to issue lender’s title insurance policies insuring that the holders of the Securities have a first priority lien on the real estate Collateral (subject to permitted liens as described in the Indenture and Security Documents)), and (iii) all documents necessary to establish that the Collateral Agent for the benefit of the holders of the Securities will have a perfected first priority security interest or lien on the Collateral (subject to permitted liens as described in the Indenture and Security Documents), as contemplated herein and in the Final Memorandum, shall have been delivered to the Collateral Agent.
(o) On the Closing Date, the Initial Purchasers shall have received the Securities executed by the Great Wolf Parties and the Guarantees executed by the Guarantors, and the Securities and the Guarantees shall be in full force and effect at all times from and after the Closing Date. On or before the Closing Date, the Initial Purchasers and 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 Great Wolf Group Members as they shall have heretofore reasonably requested from the Issuers. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Purchase Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be are subject to the satisfaction or waiver accuracy of the following conditions on or prior representations and warranties contained herein, to the Closing Dateperformance by the Issuers of their respective covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as an opinion of the Closing Date and addressed counsel to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, Issuers in form and substance satisfactory to the Initial Purchasers and Cahixx Xxxxxx & Xeinxxx, xxunsel to the Initial Purchasers, dated the 18 -18- Closing Date, of Powell, Goldstein, Frazxx & Xurpxx XXX, substantially in their reasonable discretionthe form of Exhibit D hereto. In rendering such opinion, Powell, Goldstein, Frazxx & Xurpxx XXX shall have received and may rely upon such certificates and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchasers and Cahixx Xxxxxx & Xeinxxx, xxunsel to the Initial Purchasers, as they may reasonably request to pass upon such matters.
(bii) On the Closing Date, the The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Cahixx Xxxxxx & XxXxxxXeinxxx, counsel for xxunsel to the Initial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Cahixx Xxxxxx & XxXxxx shall Xeinxxx xxxll have received and may rely upon such certificates and other documents and information as it they may reasonably request to pass upon such matters. In addition, in rendering its opinion, Cahixx Xxxxxx & Xeinxxx xxx state that its opinion is limited to matters of New York, Delaware corporate and federal law.
(diii) The Initial Purchasers shall have received from Deloitte & Touche LLP, independent public accountants for the Independent Accountants a comfort letter or Issuers, and from Coopers & Lybrxxx X.X.P., independent public accountants for National Advertising Company, "comfort" letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers and Cahixx Xxxxxx & Xeinxxx, xxunsel to the Initial Purchasers.
(eiv) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described .
(v) There shall not have been any change in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date capital stock of the most recent financial statements Issuers nor any material increase in such the consolidated short-term or long-term debt of the Issuers from that set forth or contemplated in the Final Memorandum and (b) the Issuers shall not have any liabilities or obligations, contingent or otherwise (whether or not auditedin the ordinary course of business), there shall have been no event or developmentthat are material to the Issuers, and no information shall have become knowntaken as a whole, that, individually or other than those reflected in the aggregate, has or would be reasonably likely to have a Material Adverse EffectFinal Memorandum.
(fvi) The None of the issuance and sale of the Securities hereunder pursuant to this Agreement or the Final Memorandum shall not be enjoined (temporarily or permanently) on and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Closing DateIssuers or the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or any other transactions contemplated by this Agreement or the Final Memorandum.
(gvii) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the Memorandumcondition (financial or other), the conduct business, properties, prospects or results of operations of the business Company and operations the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that, in the opinion of each the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that, in the opinion of the Issuers shall not have been interfered with by strikeand their counsel or the Initial Purchasers and their counsel, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident requires the making of any addition to or other calamity (whether or not insured) or change in the Final Memorandum in order to state a material fact required by any court applicable law, rule or governmental action, regulation to be stated therein or necessary in order or decree, and, except as otherwise stated therein, to make the properties of each of the Issuers shall statements made therein not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectmisleading.
(hviii) The Initial Purchasers shall have received a certificate of the Issuerscertificates, dated the Closing Date, and signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under chief executive officer and the laws chief financial officer of the Netherlands, in which case, Company and each Subsidiary Guarantor (or such certificate shall be signed by one Authorized Person who shall be other officers as are acceptable to the managing director of such IssuerInitial Purchasers), to the effect that:
a. All of the representations and warranties of the Issuers set forth in this Agreement are true and correct as if made on and as of the Closing Date and the Issuers have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date.
b. None of the issuance and sale of the Securities pursuant to this Agreement or the Final Memorandum have been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against any of the Issuers relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Final Memorandum.
c. Subsequent to the effective date of this Agreement, there has not occurred (i) any change, or any development involving a prospective change, in or affecting the condition (financial or other), business, properties, prospects or results of operations of the Company and the Subsidiaries, taken as a whole, not contemplated by the Final Memorandum that would materially adversely affect the market for the Securities, or (ii) any event or development relating to or involving any of the Company or the Subsidiaries or any of the respective officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. There has not been any change in the capital stock of the Company or the Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth or contemplated in the Final Memorandum and (b) the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected in the Final Memorandum.
(ix) The Issuers shall have furnished or caused to be furnished to the Initial Purchasers such further 21 -21- certificates and documents as the Initial Purchasers shall have reasonably requested. Any certificate or document signed by any officer of an Issuer and delivered to the Initial Purchasers or to counsel for the Initial Purchasers shall be deemed a representation and warranty by such Issuer to the Initial Purchasers as to the statements made therein. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel to the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation ------------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Dateconditions:
(a) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, opinions in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers, dated the Closing Date, of (i) Weil, Gotshal & Xxxxxx LLP, counsel for the Company, substantially in their reasonable discretionthe form of Exhibit A-1 hereto and (ii) Xxxxxxxxx & Associates, regulatory counsel for the Company, substantially in the form of Exhibit A-2 hereto.
(b) On the Closing Date, the The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx shall have received and may rely upon such certificates and other documents and information as it they may reasonably request to pass upon such matters. In addition, in rendering their opinion, Xxxxxx Xxxxxx & Xxxxxxx may state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(dc) The Initial Purchasers shall have received from each of Coopers & Xxxxxxx L.L.P., independent public accountants for the Independent Accountants a comfort letter or Company, and Xxxxxx Xxxxxxxx LLP, independent public accountants for Colfax, letters dated dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to the Initial Purchasers and counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and in all material respects on and as of the Closing Date (other than to the extent any such representation or warranty is expressly made as if made on and as of the Closing Dateto a certain date); the statements of any Authorized Person 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; the Issuers Company shall have performed performed, in all material respects, all covenants and agreements and satisfied satisfied, in all material respects, all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), and subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)the Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or material adverse change in the aggregatebusiness, has condition (financial or would be reasonably likely to have other) or results of operations of the Company and the Subsidiaries, taken as a Material Adverse Effectwhole, except as set forth in, or contemplated by, the Final Memorandum.
(fe) The issuance and sale of the Securities hereunder pursuant to this Agreement shall not be enjoined (temporarily or permanently) on and no restraining order or other injunctive order shall have been issued or any action, suit or proceeding shall have been commenced with respect to this Agreement before any court or governmental authority (including, without limitation, the Closing DateFCC).
(f) Subsequent to the respective dates as of which information is given in the Final Memorandum, except in each case as described in or as contemplated by the Final Memorandum, the Company and the Subsidiaries shall not have incurred any liabilities or obligations, direct or contingent, that are material to the Company and the Subsidiaries taken as a whole, or entered into any transactions that are material to the business, condition (financial or other) or results of operations of the Company and the Subsidiaries taken as a whole, and there shall not have been any change in the capital stock or long-term indebtedness of the Company that is material to the business, condition (financial or other) or results of operations of the Company and the Subsidiaries, taken as a whole.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuerscertificates, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), its President and Chief Executive Officer and Senior Vice President and Chief Financial Officer to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects as if made on and as of the Closing Date (other than to the extent any such representation or warranty is expressly made to a certain date), and the Company has performed, in all material respects, all covenants and agreements and satisfied, in -- all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) Subsequent to the respective dates as of which information is given in the Final Memorandum, there has not been any material adverse change in the business, condition (financial or other) or results of operations of the Company and the Subsidiaries, taken as a whole;
(iii) Subsequent to the respective dates as of which information is given in the Final Memorandum, except in each case as described in or as contemplated by the Final Memorandum, none of the Company or any Subsidiary has incurred any liabilities or obligations, direct or contingent that are material to the Company or the Subsidiaries taken as a whole, or entered into any transactions that are material to the business, condition (financial or other) or results of operations of the Company and the Subsidiaries, taken as a whole, and there has been no change in the capital stock or long-term indebtedness of the Company that is material to the business, condition (financial or other) or results of operations of the Company and the Subsidiaries taken as a whole; and
(iv) The issuance and sale of the Securities by the Company has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(i) The closing under the New Credit Agreement and the completion of the offering by Chancellor of the Convertible Preferred Stock shall have occurred concurrently with the closing hereunder on the Closing Date.
(j) The Colfax Acquisition shall have been consummated on or prior to the Closing Date.
(k) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates and schedules or instruments delivered pursuant to this Agreement
Appears in 1 contract
Samples: Purchase Agreement (Chancellor Radio Broadcasting Co)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date for the Optional Shares. The obligation obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be Purchased Shares are subject to the satisfaction absence from any certificates, opinions, written statements or waiver letters furnished to the Initial Purchasers pursuant to this Section 7 of any misstatement or omissions and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as an opinion of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On and Initial Purchasers’ Counsel, dated the Closing Date, of Vxxxxx & Exxxxx L.L.P., counsel to the Company, addressed to the Initial Purchasers and substantially in the form of Exhibit B hereto.
(ii) The Initial Purchasers shall have received an opinion of counsel in form and substance satisfactory to the Initial Purchasers and Initial Purchasers’ Counsel, dated the Closing Date, of the Sxxxxxxx Law Firm, L.L.C., counsel for the Company, addressed to the Initial Purchasers and substantially in the form of Exhibit C hereto.
(iii) The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the of Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Initial Purchasers’ Counsel, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(div) The Initial Purchasers shall have received from KPMG LLP, independent public accountants for the Independent Accountants Company, a comfort “comfort” letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers and Initial Purchasers’ Counsel.
(ev) The Initial Purchasers shall have received letters from each of Netherland Sxxxxx and Cxxxxxx, each being independent petroleum engineers for the Company, dated, respectively, as of the date hereof and as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Initial Purchasers’ Counsel, with respect to the estimated quantities of the Company’s reserves, the future net revenues from those reserves and their present value as set forth in the Offering Memorandum (or, if the Offering Memorandum is not in existence, the most recent Preliminary Offering Memorandum) and such related matters as the Initial Purchasers shall reasonably request.
(vi) The Initial Purchasers shall have received from each of the Company’s officers and directors listed on Schedule 2 hereto an executed Lock-Up Agreement in substantially in the form of Exhibit C attached hereto.
(vii) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(viii) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, or the other Offering Documents.
(ix) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company or any of the Subsidiaries, not contemplated by the Offering Memorandum that is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Offering Documents, or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors that makes any statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and Initial Purchasers’ Counsel require the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(x) The Initial Purchasers shall have received certificates dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company (in their capacities as such) to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with.
b. The issuance and sale of the Purchased Shares pursuant to this Agreement or the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company or any of the Subsidiaries, not contemplated by the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors that makes any statement made in the Offering Memorandum untrue or that requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(xi) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated hereby and thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fxii) The sale All proceedings taken in connection with the issuance of the Securities hereunder Purchased Shares and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial Purchasers and Initial Purchasers’ Counsel. The Initial Purchasers and Initial Purchasers’ Counsel shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(gxiii) Subsequent to The Purchased Shares shall have been approved for trading on PORTAL.
(xiv) Since the date of the Memorandumthis Agreement, the conduct of the business and operations of each of the Issuers there shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or any announcement by any court or governmental action“nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, order or decree, and, except as otherwise stated therein, the properties of each that (A) it is downgrading its rating assigned to any debt securities of the Issuers shall Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectdetermined.
(hxv) The On or before the Closing Date, the Initial Purchasers shall have received a certificate of the IssuersRegistration Rights Agreement executed by the Company, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, and such certificate agreement shall be signed by one Authorized Person who in full force and effect.
(xvi) The Company shall have furnished or caused to be furnished to the managing director Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel to the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsthe opinion and negative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg i) Xxxx Xxxxxx & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, counsel for the Issuer and/or the Guarantors, as the case may be, in each caseCompany, in form and substance reasonably satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to counsel for the Initial Purchasers, of Xxx Xxx Xxxxxand substantially as set forth in Annex B and (ii) Winston & Xxxxxx LLP, in-house legal counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers Purchasers, and substantially as set forth in their reasonable discretion.Annex C.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx LLP, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct correct, in all material respects, on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects; the statements of any Authorized Person the Company’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct correct, in all material respects, on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 be reasonably likely expected to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(hg) The Initial Purchasers Representative shall have received a certificate of from the IssuersCompany and each Guarantor, dated the Closing Date, signed on behalf of each Issuer the Company or such Guarantor by two Authorized Persons its (except in i) Chief Executive Officer, President or any Senior Vice President or executive officer performing similar functions with respect to such Guarantor and (ii) the case of any Issuer organized under the laws of the Netherlands, in which case, Chief Financial Officer or executive officer performing similar functions with respect to such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Guarantor, to the effect that:
(i) the representations and warranties of the Company or such Guarantor contained in this Agreement are true and correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects, and the Company or such Guarantor have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or such Guarantor, that, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement and the Indenture executed by the Company, the Guarantors and the Trustee and such agreement shall be in full force and effect at all times from and after the Closing Date.
(i) The Notes shall be eligible for clearance and settlement through The Depository Trust Company. On or before the Closing Date, the Initial Purchasers and 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Representative and counsel for the Initial Purchasers. The Company and the Guarantors shall furnish to the Representative such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Representative shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Great Lakes Dredge & Dock CORP)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx(i) Milbank, in-house legal Tweed, Xxxxxx & XxXxxx LLP, special New York counsel for the Issuers, in substantially the form attached hereto as Annex A; (ii) Xxxxxxx Xxxxxxxx Xxxxxx, special Bermuda counsel for the Company, in substantially the form attached hereto as Annex B; (iii) Xxxx Xxxx Xxxxxxx Xxxxx & Xxxx LLP, special regulatory counsel for the Company, in substantially the form attached hereto as Annex C; (iv) White and Case LLP, special English counsel for the Company, in substantially the form attached hereto as Annex D; (v) Xxxxxxxx Xxxxxx & Finger, special Delaware counsel for the Company, in substantially the form attached hereto as Annex E; and (vi) Xxxxx Xxxxxxx, General Counsel for Intelsat Global Service Corporation, in substantially the form attached hereto as Annex F (except, if the Acquisition is not consummated on the Closing Date, the opinion expressed in paragraph (2) thereof may be delivered on the Acquisition Date), and, in each case, in form and substance reasonably satisfactory to counsel for the Initial Purchasers in their reasonable discretionPurchasers.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx LLP, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers shall have received from each of the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company and the Parent Guarantor contained in this Agreement shall be true and correct on and as of the date hereof (but if specified to be given as of a specified date, shall be given as of such date) and on and as of the Closing Date as if made on and as of the Closing DateDate (but if specified to be given as of a specified date, shall be given as of such date); the statements of any Authorized Person the Issuers’ 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; the Issuers Company shall have performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; 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 Memorandum (whether or not audited)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 be reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) 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), except as set forth in the Final Memorandum, the conduct none of Intelsat, Intelsat Bermuda or any of the Subsidiary Guarantors shall have sustained any loss or interference with respect to its business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany and Parent Guarantor, dated the Closing Date, signed on behalf of each Issuer such entity by two Authorized Persons its Chairman of the Board, President or any Senior Vice President, to the effect that
(i) the representations and warranties of the Company and Parent Guarantor contained in this Agreement are true and correct on and as of the date hereof (but if specified to be given as of a specified date, shall be given as of such date) and on and as of the Closing Date (but if specified to be given as of a specified date, shall be given as of such date), and the Company and Parent Guarantor have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements, except as described in the Final Memorandum, no event or development has occurred, and no information has become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement and Indenture executed by the Company and Parent Guarantor and, substantially concurrently or immediately following the consummation of the Acquisition, shall have received the Joinder Agreements and Supplemental Indenture executed by each Subsidiary Guarantor and such agreements shall be in full force and effect at all times from and after the Closing Date (except in the case of the Joinder Agreements and Supplemental Indenture, which shall be in full force and effect at all times from and after their execution).
(i) To the extent the Acquisition is substantially concurrently consummated on the Closing Date, the Issuers parties thereto shall have executed and delivered the Credit Documents and the Initial Purchasers shall have received copies thereof. To the extent the Acquisition is substantially concurrently consummated on the Closing Date, each condition to the closing contemplated by the Credit Documents (other than the issuance and sale of the Securities pursuant hereto) will, on or prior to the Closing Date, have been satisfied or waived. To the extent the Acquisition is substantially concurrently consummated on the Closing Date, there shall not exist at, and as of, the Closing Date (after giving effect to the transactions contemplated by this Agreement) any Issuer organized conditions that would constitute a default (or an event that with notice or the lapse of time, or both, would constitute a default) under the laws Credit Documents.
(j) To the extent the Acquisition is substantially concurrently consummated on the Closing Date, Holdings, the Parent Guarantor and the Company and the other parties thereto shall have executed and delivered the Acquisition Documents and the Initial Purchasers shall have received copies thereof. To the extent the Acquisition is substantially concurrently consummated on the Closing Date, each condition to the closing contemplated by the Acquisition Documents (other than the issuance and sale of the NetherlandsSecurities pursuant hereto and the initial borrowings under the Credit Documents) will, in which caseon or prior to the Closing Date, such certificate have been satisfied or waived.
(k) The Transactions shall be signed consummated in a manner consistent in all material respects with the description thereof in the Final Memorandum and (unless the Company executes and delivers the Escrow Agreement on the Closing Date) substantially concurrent with the purchase of the Securities by one Authorized Person who shall be the managing director of such Issuer)Initial Purchasers.
(l) At the Closing Date, to the effect that:extent the Acquisition is not substantially concurrently consummated, the Company, the Trustee and the Escrow Agent shall have entered into the Escrow Agreement. On or before the Closing Date, the Initial Purchasers and 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 Issuers as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to DBSI and counsel for the Initial Purchasers. The Company shall furnish to DBSI such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as DBSI shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Intelsat LTD)
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be hereunder are subject to the satisfaction or waiver accuracy, when made and on the applicable Delivery Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following conditions on or prior to the Closing Dateadditional terms and conditions:
(a) On the Closing Date, the No Initial Purchasers Purchaser shall have received opinionsdiscovered and disclosed to the Company prior to or on such Delivery Date that the Offering Memorandum or any amendment or supplement thereto, dated as in the opinion of the Closing Date and addressed Xxxxxxxx & Xxxxxxxx LLP, counsel to the Initial Purchasers, contains an untrue statement of each any material fact or omits to state a material fact necessary in order to make the statements therein, in the light of Linklaters the circumstances under which they were made, not misleading.
(US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law)b) Proskauer Rose LLP, counsel for to the Issuer and/or Company, shall have furnished to the Guarantors, as Initial Purchasers its written opinion addressed to the case may be, in each caseRepresentatives and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance reasonably satisfactory to the Initial Purchasers, dated as substantially in the form of Exhibit 1 hereto.
(c) Xxxxxxx Xxxxxxxx, General Counsel of the Closing Date and Company shall have furnished to the Initial Purchasers his written opinion addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement Representatives and dated such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Delivery Date, in form and substance reasonably satisfactory to the Initial Purchasers, substantially in the form of Exhibit 2 hereto.
(d) Xxxxxxxx & Xxxxxxxx LLP shall have furnished to the Initial Purchasers its written opinion, as counsel for to the Initial Purchasers, addressed to the Representatives and dated such Delivery Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(e) The representations At the time of execution of this Agreement, the Initial Purchasers shall have received from Accountants a letter or letters, in form and warranties substance reasonably satisfactory to the Initial Purchasers, addressed to the Representatives and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Issuers contained Securities Act and are in this Agreement shall be true compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and correct on and (ii) stating, as of the date hereof and on and (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Closing Date as if made on and Offering Memorandum, as of the Closing Date; the statements of any Authorized Person made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the a date made and on and as of the Closing Date; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or not more than five days prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to initial purchasers in connection with registered public offerings.
(f) With respect to the letter of the Accountants referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "INITIAL COMFORT LETTER"), the Company shall have furnished to the Initial Purchasers a letter (the "BRING-DOWN COMFORT LETTER") of such accountants, addressed to the Representatives and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii)stating, as of the 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 most recent financial statements in such Memorandum (whether or not auditedbring-down letter), there shall have been no event or development, the conclusions and no findings of such firm with respect to the financial information shall have become known, that, individually or and other matters covered by the initial letters and (iii) confirming in all material respects the conclusions and findings set forth in the aggregate, has or would be reasonably likely to have a Material Adverse Effectinitial letters.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:
Appears in 1 contract
Samples: Indenture (Schein Henry Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg i) Fulbright & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); StroeterJaworski, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, counsel for the Issuer and/or the GuarantorsCompany and Grant Prideco, in substantixxxx xxx same form as the case may beExhibit B hereof and (ii) Philip A. Choyce, General Counsel of Grant Prideco, in substantially txx xxxx xxxx xx Exhibit C hereof and, in each case, in form and substance as satisfactory to the counsel for the Initial Purchasers in their reasonable discretionPurchasers.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Cahill Gordon & XxXxxxReindel, counsel for the Initial Purchasers, with respect to certain legal matters respxxx xx xxxxxxn lxxxx xxtters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx Cahill Gordon & XxXxxx Reindel shall have received and may rely upon such certificates and other documents cerxxxxxxxxx xxx otxxx xxxuments and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers shall have received from each of the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company and Grant Prideco contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company's and Grant Prideco'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; the Issuers Company and Grant Prideco shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; 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 Memorandum (whether or not audited)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 be reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of Grant Prideco or any of the Subsidiaries shall have sustained any loss or interference with respect to its business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany and Grant Prideco, dated the Closing Date, signed on behalf of each Issuer the Company and Grant Prideco by two Authorized Persons (except in the case of any Issuer organized under the laws Grant Prideco's Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer), Chief Financial Officer to the effect that:
(i) the representations and warranties of the Company and Grant Prideco contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and each of the Company and Grant Prideco have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the 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 be reasonably likely to have a Material Adverse Effect;
(iii) the sale of the Notes hereunder has not been enjoined (temporarily or permanently); and
(iv) to their knowledge, the audited financial statements, and other financial information included therein, for the years ended December 31, 2000, December 31, 1999, December 31, 1998 and December 31, 1997, fairly present in all material respects the financial condition, results of operations and cash flows of Grant Prideco as of, and for, the periods presented therein.
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by Grant Prideco and each of the Existing Guarantors and such agreement shall be in full force and effect at all times from and after the Closing Date.
(i) On the Closing Date, the Escrow Agreement shall have been executed and delivered by all parties thereto. On or before the Closing Date, the Initial Purchasers and 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 each of the Company, Grant Prideco and the Subsidiaries as they shall have heretofore reasonably requested from the Company and Grant Prideco. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company and Grant Prideco shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as (at the request of the Closing Date and addressed to Issuer) the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx(i) K&L Gates LLP, in-house legal counsel for the IssuersIssuer and the Guarantors attached hereto as Exhibit A-1, and (ii) Xxxxxxxxx Xxxxx, P.C., Nevada counsel for certain of the Guarantors, attached hereto as Exhibit A-2, in each case with respect to certain legal matters relating to this Agreement and certain other related matters in form and substance reasonably satisfactory to counsel for the Initial Purchasers in their reasonable discretionPurchasers. In rendering such opinions, K&L Gates LLP and Xxxxxxxxx Xxxxx, P.C. shall have received and may rely upon such certificates and other documents and information as each may reasonably request to pass upon such matters.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx LLP, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The On the date hereof, the Initial Purchasers shall have received (i) from the Independent Accountants E&Y a comfort letter or letters dated the date hereof hereof, addressed to the Initial Purchasers in form and substance satisfactory to counsel for the Initial Purchasers and (ii) from KPMG a comfort letter dated the date hereof, addressed to the Initial Purchasers in form and substance satisfactory to counsel for the Initial Purchasers. On the Closing Date, the Initial Purchasers shall have received (i) from E&Y a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the financial information in the Final Memorandum and (ii) from KPMG a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the financial information in the Final Memorandum.
(d) [Reserved].
(e) The representations and warranties of the Issuers Issuer and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Issuer’s and the Guarantors’ 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; the Issuers Issuer and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandummost recent audited financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of Parent or any of the Subsidiaries shall have sustained any loss or interference with respect to its business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersIssuer, dated the Closing Date, signed on behalf of each the Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which caseChief Executive Officer, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Issuer and the Guarantors contained in this Agreement are true and correct at and as of the Time of Execution and on and as of the Closing Date, and the Issuer and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final 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 be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(i) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Issuer and the Guarantors and such agreements shall be in full force and effect at all times from and after the Closing Date.
(j) Prior to or concurrently with the issuance of the Securities on the Closing Date, (x) the early settlement under the Tender Offer and Consent Solicitation shall have occurred as described in the Pricing Disclosure Package, the Final Memorandum and the Offer to Purchase and (y) with respect to any Existing Notes that remain outstanding and are not repurchased in connection with the Tender Offer and Consent Solicitation as of the Closing Date, the Issuer shall have delivered to the trustee for the Existing Notes an irrevocable notice of redemption in accordance with the provisions of the Existing Notes Indenture (a copy of which shall have been delivered to the Initial Purchasers) (the “Redemption”).
(k) The Initial Purchasers shall have received a certificate of Parent’s Chief Financial Officer or similar officer relating to certain financial information included in the Pricing Disclosure Package and the Final Memorandum substantially in the form attached hereto as Exhibit B delivered on, and dated and as of, each of the date hereof and the Closing Date. On or before the Closing Date, the Initial Purchasers and 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 Parent and the Subsidiaries as they shall have heretofore reasonably requested from the Issuer. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuer or any Guarantor, as applicable, shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg i) Powell, Goldstein, Xxxxxx & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law)LLP, counsel for the Issuer and/or Company and certain of the Subsidiary Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to counsel for the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal as set forth in Exhibit B-1 and Exhibit B-2 hereto and (ii) local counsel for certain of the IssuersSubsidiary Guarantors, in form and substance satisfactory to counsel for the Initial Purchasers Purchasers, as set forth in their reasonable discretionExhibit C hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx LLP, 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 counsel may also state that, insofar as such opinionopinion involves factual matters, Milbankthey have relied, Tweedto the extent they deem proper, Xxxxxx & XxXxxx upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have received and may rely upon such certificates and other documents and information as it may reasonably request been provided to pass upon such mattersthe Initial Purchasers.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company’s and the Subsidiary Guarantors’ 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; the Issuers Company and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; 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 Memorandum (whether or not audited)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 be reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate certificates of the IssuersCompany and each of the Subsidiary Guarantors, dated the Closing Date, signed on behalf of each Issuer the Company or the applicable Subsidiary Guarantor by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company or the applicable Subsidiary Guarantor contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and the Company or the applicable Subsidiary Guarantor has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the 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 to the Company or such Subsidiary Guarantor, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Subsidiary Guarantors and such agreement shall be in full force and effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Company, each of the Subsidiary Guarantors and the Trustee and such agreement shall be in full force and effect.
(j) On the Closing Date, the Company and the Subsidiary Guarantors shall have delivered to the Initial Purchasers a fully executed copy of the Senior Credit Agreement, in form and substance satisfactory to counsel for the Initial Purchasers, and such agreement shall be in full force and effect.
(k) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(l) The Securities shall be designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD. On or before the Closing Date, the Initial Purchasers and 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company and the Subsidiary Guarantors shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, "Closing Date" shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligation obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be Notes are subject to the satisfaction absence from any certificates or waiver opinions furnished to the Initial Purchasers pursuant to this Section 7 of any misstatement or omissions and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as an opinion of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On and Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchasers, dated the Closing Date, of Xxxxxxxxx Traurig, LLP, counsel to the Company, substantially in the form of Exhibit B hereto.
(ii) The Initial Purchasers shall have received opinions of counsel in form and substance satisfactory to the Initial Purchasers and Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchasers, dated the Closing Date, of (i) Deacons, counsel to Synaptics Hong Kong Limited, (ii) Xxxxxxx Xxxxxx & Higham, counsel to Synaptics (UK) Limited and (iii) Xxxxx Xxxxx Xxxxxx, counsel to Synaptics Holding GmbH, substantially in the form of Exhibit C hereto.
(iii) The Initial Purchasers shall have received an opinion of counsel in form previously delivered to the Initial Purchasers and in substance satisfactory to the Initial Purchasers and Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchasers, dated the Closing Date, of Xxxxxxxxx Xxxxxx & Xxxxxx, P.C., intellectual property counsel to the Company.
(iv) Upon the request of the Initial Purchasers, the Initial Purchasers shall have received an opinion of counsel in form and substance satisfactory to the Initial Purchasers and Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchasers, dated the Closing Date, of Beresford & Co., intellectual property counsel to Synaptics (UK) Limited.
(v) The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxxXxxxxxx LLP, counsel for to the Initial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dvi) The Initial Purchasers shall have received from KPMG LLP, independent public accountants for the Independent Accountants Company, a comfort "comfort" letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and Xxxxxx & Xxxxxxx LLP, counsel for to the Initial Purchasers.
(evii) The Initial Purchasers shall have received from Ernst & Young LLP, independent public accountants for the Company, a "comfort" letter dated the Closing Date, in the form of Exhibit D hereto.
(viii) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule 2 hereto an executed Lock-Up Agreement in substantially in the form of Exhibit E hereto.
(ix) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(x) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, or the other Offering Documents.
(xi) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties or results of operations of the Company or any of the Subsidiaries, not contemplated by the Offering Memorandum that is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Offering Documents, or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors, that makes any statement made in the Offering Memorandum untrue in any material respect or that, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, require the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(xii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with.
b. The issuance and sale of the Notes pursuant to this Agreement and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers' knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers' activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (i) any material change, or any development involving a prospective material change, in the general affairs, management, business, condition (financial or other), properties or results of operations of the Company or any of the Subsidiaries, not contemplated by the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors that makes any statement made in the Offering Memorandum untrue in any material respect or that requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Documents, there exists no Default or Event of Default (as defined in the Indenture).
(xiii) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fxiv) The sale All proceedings taken in connection with the issuance of the Securities hereunder Notes and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent reasonably satisfactory to the date of Initial Purchasers and counsel to the Memorandum, Initial Purchasers. The Initial Purchasers and counsel to the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(xv) The Notes shall have been approved for trading on The PORTAL Market.
(xvi) Since the date of this Agreement, there shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the IssuersCompany, dated or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xvii) On or before the Closing Date, signed on behalf of each Issuer the Initial Purchasers shall have received the Registration Rights Agreement executed by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, Company and such certificate agreement shall be signed in full force and effect.
(xviii) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested.
(xix) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by one Authorized Person who the Company and duly authenticated by the Trustee. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel to the Initial Purchasers. The Company shall be furnish to the managing director Initial Purchasers such conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Synaptics Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsopinion letters, each in form and substance satisfactory to the Initial Purchasers and (other than with respect to clause (i) below) substantially as set forth in Exhibit A hereto, each dated as of the Closing Date and addressed to the Initial PurchasersPurchasers with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law)i) Xxxxx Xxxxx L.L.P., counsel for the Issuer and/or Company and the Guarantors, (ii) Xxxxx Xxxxxxx Xxxxxxxx Xxxx + Xxxxxxxxx PC, special Colorado counsel for the Company and the Guarantors, (iii) Xxxxxxx Xxxxxx, P.A., special Florida and Georgia counsel for the Company and the Guarantors, (iv) Xxxxxxx & Xxxxxxx, P.A., special North Carolina counsel for the Company and the Guarantors, and (v) Xxxx, Xxxxxxx & Cleveland, PLLC, special Washington counsel for the Company and the Guarantors. In rendering such opinions, such counsel shall have received and may rely upon such certificates and other documents and information as the case they may be, in each case, in form and substance satisfactory reasonably request to the Initial Purchasers in their reasonable discretionpass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxx Xxxx & XxXxxxXxxxxxxx LLP, 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, Milbank, Tweed, Xxxxxx Xxxxx Xxxx & XxXxxx Xxxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers, with respect to the audited and any unaudited financial information included or incorporated by reference in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update, as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information included or incorporated by reference in the Final Memorandum.
(d) [Reserved.]
(e) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in its Chief Executive Officer and the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final 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 be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) The Company and the Guarantors party thereto shall have executed and delivered the Base Indenture, and the Company and the Guarantors shall have executed and delivered the Fourth Supplemental Indenture, each in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof.
(i) No registration under the Act of the Securities is required in connection with the sale of the Securities to the Initial Purchasers as contemplated by this Agreement and the Pricing Disclosure Package and the Final Memorandum or in connection with the initial resale of the Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the representations of the Company contained in this Agreement and of the Initial Purchasers in Section 8 hereof regarding the absence of a general solicitation in connection with the sale of such Securities to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. On or before the Closing Date, the Initial Purchasers and 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 or the Guarantors. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company or any Guarantor, as applicable, shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (LGI Homes, Inc.)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Securities. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be are subject to the satisfaction absence from any certificates, opinions, written statements or waiver letters furnished to the Initial Purchaser pursuant to this Section 7 of any misstatement or omission and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchaser:
(aA) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers Purchaser shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, in its sole discretion, dated as of the Closing Date and addressed Date, of O’Melveny & Xxxxx, LLP, counsel to the Company.
(B) The Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, 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, Milbank, Tweed, Xxxxxx & XxXxxx Purchaser shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Datean opinion, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser, in its sole discretion, dated the Closing Date, of Xxxxx & Lardner, intellectual property counsel to the Company.
(eC) The Initial Purchaser shall have received a comfort letter, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, dated the Closing Date, of Stonefield Xxxxxxxxx, Inc., registered independent auditor of the Company.
(D) The Initial Purchaser shall have received an opinion, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, dated the Closing Date, of DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP, counsel to the Initial Purchaser.
(E) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; , and the statements of any Authorized Person 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; the Issuers Company shall have performed complied in all covenants and respects with all covenants, agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(F) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by this Agreement or any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchaser relating to the issuance or the trading of the Securities or the Initial Purchaser’ activities in connection therewith or any other transactions contemplated by this Agreement or the Prospectus or the other Offering Documents.
(G) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Memorandum Prospectus (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change in, or affecting the business, condition (financial or other), properties or results of operations of, the Company or any Subsidiary not disclosed in the Prospectus that is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the Offering on the terms and in the manner contemplated by the Prospectus, or (ii) any event or development relating to or involving the Company or any Subsidiary or any of their respective officers or directors that makes any statement made in the Prospectus untrue or that, in the opinion of the Company and its counsel or the reasonable judgment of the Initial Purchaser, requires the making of any addition to or change in the Prospectus in order to state a material fact necessary in order to make the statements made therein not misleading.
(H) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the President and Chief Executive Officer and the Chief Financial Officer of the Company, to the effect that:
(i) All of the representations and warranties of the Company set forth in this Agreement are true and correct on and as of the Closing Date, all covenants agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder in all respects on or prior the Closing Date have been duly performed, satisfied or complied with.
(ii) No event has occurred and is continuing, as a result of which the Prospectus including all exhibits and attachments thereto would contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances existing at the time it is delivered to the Initial Purchaser, not misleading.
(iii) The issuance and sale of the Notes pursuant to this Agreement and the Prospectus and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance or the trading of the Securities or the Initial Purchaser’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Prospectus or the other Offering Documents.
(iv) Subsequent to the date of this Agreement and since the date of the most recent financial statements in such Memorandum the Prospectus (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (1) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties or results of operations of the Company or any Subsidiary, not contemplated by the Prospectus, or, in the judgment of the Initial Purchaser, could result in a Material Adverse Effect upon the Company, or (2) any event or development relating to or involving the Company or any Subsidiary or any of their respective officers or directors that, in the judgment of the Initial Purchaser, makes any statement made in the Prospectus untrue or that requires the making of any addition to or change in the Prospectus in order to state a material fact necessary in order to make the statements made therein not misleading.
(v) At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Prospectus Supplement there shall exist no Default or Event of Default (as defined in the Indenture).
(I) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchaser) and shall be in full force and effect, and there shall have been no event amendments, alterations, modifications or developmentwaivers of any provision thereof since the date of this Agreement.
(J) There shall have been Purchaser Letters executed and delivered by the Subsequent Purchasers agreeing to fund a total of $33,156,000 none of the Subsequent Purchasers shall have actually made or threatened to make any amendments, alterations, modifications, withdrawals, waivers or breaches with respect to its Purchaser Letter and/or its commitment set forth on Schedule 1 attached hereto or failed to perform in any respect with respect to its Purchaser Letter and/or its commitment set forth on Schedule 1 attached hereto and the Initial Purchaser shall have no reasonable good faith belief that such commitments or purchases will not be funded.
(K) All proceedings taken in connection with the issuance of the Notes and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall be satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance satisfactory to them.
(L) The Notes shall be eligible for clearance on DTC.
(M) At the Closing Date, the Company and the Trustee shall have entered into the Indenture, in form and substance satisfactory to the Initial Purchaser, in its sole discretion, and no information the Initial Purchaser shall have become knownreceived counterparts, thatdated the Closing Date and executed by each of the parties thereto and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(N) There are no pending or threatened legal or governmental proceedings to which the Company or the Subsidiaries is a party or of which any property of the Company or the Subsidiaries is the subject, which, the Initial Purchaser believes, in its sole discretion, if determined adversely to the Company or the Subsidiaries, would individually or in the aggregate, has or would be reasonably likely to aggregate have a Material Adverse Effect.Effect on the financial position or results of operations of the Company and the Subsidiaries taken as a whole; and
(fO) The sale of the Securities hereunder There shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of have been executed by each of the Issuers shall not have been interfered Subsequent Purchasers, as listed on Schedule 1, an Exchange Agreement with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties Company representing an aggregate exchange of each $40,668,000 principal amount of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrenceCompany’s 5.75% Convertible Senior Secured Subordinated Notes due June 15, except any such interference2008 and the Company’s 5.75% Convertible Subordinated Notes due June 15, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate 2008 for $33,156,000 principal amount of the IssuersCompany’s 7.5% Convertible Senior Notes due April 26, dated 2011. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except provisions hereof only if they are satisfactory in all respects to the case of any Issuer organized under Initial Purchaser and counsel to the laws of Initial Purchaser. The Company shall furnish to the Netherlands, in which case, Initial Purchaser such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation ------------------------------------------------- of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxxxxx & Xxxxx, in-house legal counsel for the IssuersCompany, substantially in the form and substance satisfactory to the Initial Purchasers in their reasonable discretion.of Exhibit B hereto. ---------
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company's and the Subsidiary Guar- antors' officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date; the Issuers Company and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions in all material respects on their part to be performed or satisfied hereunder at or prior to the Closing Date; 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 Memorandum (whether or not audited)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 be reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which caseChief Executive Officer, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer), Chief Financial Officer to the effect that:
(i) The representations and warranties of the Company and the Subsidiary Guarantors contained in this Agreement are true and correct on and as of the Closing Date, and the Company and the Subsidiary Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the 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 be reasonably likely to have a Material Adverse Effect; and
(iii) To the knowledge of such officers, the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. On or before the Closing Date, the Initial Purchasers and 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. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsthe opinion and negative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxx Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); StroeterLLP, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), special counsel for the Issuer and/or the Guarantors, as the case may be, in each caseCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers Purchasers, and substantially as set forth in their reasonable discretionAnnex B-1 and B-2, respectively, hereto. In {N4389313.2} rendering such opinion, Xxxxx Xxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date opinion and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuersnegative assurance letter, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance reasonably satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx LLP, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date (which date shall not be more than three business days prior to the Closing Date), the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct correct, in all material respects, on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; provided, that (x) each such representation and warranty that contains a materiality qualification in the text of such representation and warranty and (y) the representations and warranties set forth in Section 2(hh), (ii) and (jj) shall, in each case, be true and correct in all respects; the statements of any Authorized Person the Company’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct correct, in all material respects, on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 be reasonably likely expected to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(hg) The Initial Purchasers Representative shall have received a certificate of from the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of its officers, including its Chief Executive {N4389313.2} Officer, President, any Issuer organized under the laws of the NetherlandsSenior Vice President, in which caseany executive officer, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Chief Financial Officer, Controller, Treasurer or principal financial or accounting officer, to the effect that to such officers’ knowledge after reasonable inquiry:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date; provided, that (x) each such representation and warranty that contains a materiality qualification in the text of such representation or warranty and (y) the representations and warranties set forth in Section 2(hh), (ii) and (jj) shall, in each case, be true and correct in all respects; and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or any Guarantor, that:, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Company, the Guarantors and the Trustee, and such agreement shall be in full force and effect at all times from and after the Closing Date.
(i) The Notes shall be eligible for clearance and settlement through The Depository Trust Company.
(j) The Representative shall have received evidence reasonably satisfactory to it that, at or prior to the time the Initial Purchasers purchase the Securities, an unconditional instruction (other than the condition of the completion of the issuance of the Notes) shall have been delivered to the trustee under the 2022 Notes Indenture to issue a notice of redemption to holders of such 2022 Notes for all outstanding 2022 Notes and moneys sufficient to satisfy such redemption payments shall have been deposited with the trustee for such Existing Notes, in accordance with the redemption procedures set forth in the 2022 Notes Indenture. On or before the Closing Date, the Initial Purchasers and 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Representative and counsel for the Initial Purchasers. The Company and the Guarantors shall furnish to the Representative such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Representative shall reasonably request. {N4389313.2}
Appears in 1 contract
Samples: Purchase Agreement (Great Lakes Dredge & Dock CORP)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of (i) the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx XxxxxLocke Liddell & Sapp LLP, in-house legal counsel for the IssuersCompany, in form and xxxxtxxxx reaxxxxbly satisfactory to counsel for the Initial Purchasers, to the effect set forth in Exhibit A, (ii) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Meilicke Hoffman & Partner, German counsel to the Company, in forx xxx xxxxxance reasonably satisfactory to counsel for the Initial Purchasers, to the effect set forth in Exhibit B, (iii) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Bech-Bruun Dragsted Law Firm, Danish counsel to the Company, xx xxxx xnd substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit B, (iv) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Narbarro Nathanson, United Kingdom counsel to the Company, ix xxxx xxx xxxxxxnce reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit B, and (v) the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of MB et Associes, French counsel to the Company, in form and substance reasonably satisfactory to the Initial Purchasers Purchasers, to the effect set forth in their reasonable discretion.Exhibit B.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Cahill Gordon & XxXxxxReindel, counsel for the Initial Purchasers, with respect to certain rexxxxx xo cxxxxxx legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx Cahill Gordon & XxXxxx Reindel shall have received and may rely upon such certificates and xxxx xxxxxxxcatxx xxx other documents and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company's officers made pursuant to in any certificate signed by them delivered on or as of the Closing Date 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; the Issuers Company shall have performed in all material respects all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; 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 Memorandum (whether or not audited)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 be reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, organized labor dispute, labor slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in its Chief Executive Officer or any President or Vice President and the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and the Company has 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;
(ii) At the Closing Date, since the 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 be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at the Closing Date.
(i) On the Closing Date, the Initial Purchasers shall have received the Escrow and Pledge Agreement and the Securities Account Control Agreement, each dated the Closing Date, executed by the Company, NL Industries, Inc., the trustee identified therein and the securities intermediary identified therein.
(j) On or before the Closing Date, the Company shall have caused to be delivered the following documents and instruments with regard to the Collateral:
(i) to the Trustee (with a copy to the Initial Purchasers), the Security Agreements and other Security Documents, duly executed by the Company, together with certificates, if any, representing 65% of the issued and outstanding capital stock or other equity interests of the first-tier Subsidiaries required to be pledged to the Trustee and evidence of all registrations or filings in each of the offices where such registrations or filings are necessary or, in the opinion of the Initial Purchasers, desirable to perfect the Liens created or intended to be created thereby;
(ii) to the Initial Purchasers and the Trustee, evidence satisfactory to them of the payment of all filing fees and taxes in connection with the filings and registrations contemplated in clause (i) above and acknowledgment copies of all such filings; and
(iii) to the Initial Purchasers and the Trustee, evidence as may be reasonably requested that all other actions necessary to perfect and, subject to Liens expressly permitted to exist by the terms of the applicable Security Document, protect the Liens created or intended to be created by the Security Documents have been taken.
(k) The new credit facility (the "New Credit Facility") among Kronos Titan GmbH & Co. OHG, Kronos Europe S.A./N.V., Kronos Titan A/S and Titania A/S (and other subsidiaries of the Company) and the lenders party thereto shall be in full force and effect; all conditions to making the initial loans thereunder shall have been satisfied and the borrowers thereunder shall be in compliance with all the terms thereof. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received from the Company 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); StroeterLinklaters, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), special counsel for the Issuer and/or Company, and Vxxxxxx Xxxx, Legal Vice President, Corporate Affairs of the GuarantorsCompany, as substantially in the case may be, respective forms set forth in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretionExhibits C.1 through C.4.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Vxxxxx & XxXxxxExxxxx L.L.P., 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, MilbankVxxxxx & Exxxxx L.L.P. may rely, Tweedas to all matters governed by the laws of jurisdictions other than the laws of the State of New York and the federal law of the United States, Xxxxxx upon the opinion of Linklaters & XxXxxx shall Alliance delivered pursuant to Section 7(a) hereof or upon opinions of other counsel reasonably satisfactory to the Initial Purchasers. Such counsel may also state that insofar as such opinion involves factual matters, they have received relied, to the extent they deemed proper, upon certificates of officers of the Company and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such mattersof public officials.
(dc) The Initial Purchasers shall have received from the Independent Accountants a Bxxxxxx Frinault & Autres and Ernst & Young Audit comfort letter or letters dated the date hereof and dated as of the Closing Dateclosing date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing DateDate (except for the representations and warranties which were true and correct as of a certain specified date which shall continue to be true and correct as of such date); the statements of any Authorized Person the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; 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 Memorandum (whether or not audited)Final Memorandum, there shall have been no event or development, and no information shall have become known, development that, individually singly or in the aggregate, has or would be is reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the 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), other than as described in such Final Memorandum or contemplated hereby, neither the Company nor any subsidiary of the Company shall have incurred any liabilities or obligations, direct or contingent (other than in the ordinary course of business), that are material to the Company and its subsidiaries, taken as a whole, or entered into any transactions or contracts (written or oral) not in the ordinary course of business that are material to the business, condition (financial or other) or results of operations or prospects of the Company and its subsidiaries, taken as a whole; there shall not have been any adverse change in the capital stock or long-term indebtedness of the Company or any subsidiary of the Company that is material to the business, condition (financial or other) or results of operations or prospects of the Company and its subsidiaries, taken as a whole; and neither the Company nor any of its subsidiaries shall have purchased any of its outstanding capital stock (other than with respect to any subsidiary, the purchase of capital stock owned by the Company).
(g) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), neither the conduct Company nor any of the business and operations of each of the Issuers its subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its businesses or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect., nor shall there have been any material adverse change, or any development which may reasonably be expected to involve a material adverse change, in the properties, business, results of operations, condition (financial or otherwise), operations or prospects of the Company and its subsidiaries taken as a whole (any such event, a “Material Adverse Change”), or any event or development involving or reasonably likely to cause or result in a Material Adverse Effect (including without limitation a change in management or control of the Company), except in each case as described in the Final Memorandum (exclusive of any amendment or supplement thereto);
(h) The Initial Purchasers shall have received a certificate certificates of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws Rxxxxx Xxxxxx, its Chairman of the NetherlandsBoard and Chief Executive Officer, in which caseand Mxxxxx Xxxxxxx, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)its Senior Executive Vice President, Human Resources & Finance and Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the date hereof and as of the Closing Date (except for the representations and warranties which were true and correct as of a certain specified date which shall continue to be true and correct as of such date), and the Company has performed all covenants and agreements and satisfied hereunder all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the 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 events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect;
(iii) since the 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), other than as described in the Final Memorandum or contemplated hereby, neither the Company nor any subsidiary of the Company has incurred any liabilities or obligations, direct or contingent (other than in the ordinary course of business), that are material to the Company and its subsidiaries, taken as a whole, or entered into any transactions or contracts (written or oral) not in the ordinary course of business that are material to the business, condition (financial or other) or results of operations or prospects of the Company and its subsidiaries, taken as a whole; there has not been any change in the capital stock or long-term indebtedness of the Company or any subsidiary of the Company that is material to the business, condition (financial or other) or results of operations or prospects of the Company and its subsidiaries, taken as a whole; and neither the Company nor any of its subsidiaries has purchased any of its outstanding capital stock (other than with respect to any subsidiary, the purchase of capital stock owned by the Company).
(iv) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(i) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement duly executed by the Company.
(j) At the Closing Date, the Securities shall be rated at least Ba3 by Mxxxx’x Investors Service and BB by Standard & Poor’s, and the Company shall have delivered to the Initial Purchasers a letter dated on or about the Closing Date, from each such rating agency, or other evidence satisfactory to the Initial Purchasers, confirming that the Securities have such ratings.
(k) At the Closing Date, the Securities shall have been designated for trading on The Portal Market and cleared for settlement at DTC.
(l) At the Closing Date, application shall have been made to list the Securities on the Luxembourg Stock Exchange, and such application either shall not have been withdrawn or rejected or shall have been approved for listing subject to official notice of issuance. On or before the Closing Date, the Initial Purchasers and 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 as they shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, any series of Notes shall be subject to the satisfaction or waiver accuracy of the following conditions on or prior to representations and warranties of the Company in Section 2 hereof, in each case as of the Execution Date and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and the consummation of the sale and purchase of each of the other series of Notes and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the The Initial Purchasers shall have received an opinion, dated as the Closing Date, of Xxxxxx & Xxxxxxxx LLP, counsel for the Company, to the effect set forth in Exhibit C hereto.
(b) The Initial Purchasers shall have received opinions, dated the Closing Date, from each of the Closing Date Company’s local antitrust counsels in Argentina, Brazil, Germany, Russia, Spain, Turkey and addressed Zimbabwe, with respect to each subsidiary of the Company existing in each such country, reasonably satisfactory to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the The Initial Purchasers shall have received the an opinion, dated the Closing Date, from each of the Company’s and Standard’s local line bank counsels in form and substance Brazil, reasonably satisfactory to the Initial Purchasers.
(d) The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial PurchasersDate, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel Counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such Counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, Milbank, Tweed, such Counsel may rely as to certain matters of Virginia and North Carolina law upon the opinion of Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request Xxxxxxxx LLP referred to pass upon such mattersin paragraph (a) above.
(de) The Initial Purchasers shall have received from both Ernst & Young LLP and Deloitte & Touche LLP letters dated, respectively, the Independent Accountants a comfort letter or letters dated the date hereof Execution Date and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, containing statements and information of the type ordinarily included in accountants’ comfort letters to underwriters and other placement agents with respect to the financial information included in and incorporated by reference into the Final Memorandum.
(ef) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer and the Chief Financial Officer of the Company to the effect that:
(i) the representations and warranties of the Issuers contained Company in this Agreement shall be are true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and Final Memorandum, as of the date made and on and amended or supplemented as of the Closing Date, does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Issuers shall have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum
(exclusive of any amendment or supplement thereto after the date hereof), ii) subsequent to the date as of which information is given in the Final Memorandum, none of the most recent financial statements in such Memorandum (whether Company, Standard or not audited), there shall have been no event the respective subsidiaries of either has sustained any material loss or development, and no information shall have become known, that, individually interference with their respective businesses or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court labor dispute or any legal or governmental actionproceeding, order and there has not been any Material Adverse Effect, or decree, andany development involving a prospective Material Adverse Effect, except in each case as otherwise stated thereindescribed in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Date, the properties of each of the Issuers there shall not have sustained been any loss or damage (whether or not insured) as a result decrease in the rating of any such occurrence, except of the Company’s debt securities (including the Notes) by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such interference, loss rating or damage which would not, whether individually or of a possible change in any such rating that does not indicate the aggregate, have or be reasonably likely to have a Material Adverse Effectdirection of the possible change.
(h) The Company shall have been advised by the National Association of Securities Dealers, Inc. that the Notes have been designated PORTAL-eligible securities in accordance with the rules and regulations of the NASD relating to trading in the PORTAL Market.
(i) The Notes shall be eligible for clearance and settlement through the Depositary.
(j) Concurrently with the closing of the Offering, the New Credit Facility, with terms substantially the same as those described in the Final Memorandum, shall have been executed and delivered by the parties thereto. There shall exist as of the Closing Date, no condition that would constitute a default (or an event that with notice or lapse of time, or both, would constitute a default) under the New Credit Facility, and the conditions to the initial borrowings thereunder shall have been satisfied by the Company or waived by the administrative agent thereunder such that the Company shall be eligible to draw down thereunder an amount sufficient, together with the proceeds of the Offering, to consummate the transactions as described under the heading “Use of Proceeds” in the Final Memorandum.
(k) Concurrently with the closing of the Offering, the Merger shall have been consummated in accordance with the Merger Agreement.
(l) Concurrently with the closing of the Offering, each of the Tender Offers shall have expired, and not been terminated or withdrawn by the Company or Standard, as the case may be, in accordance with each of its terms.
(m) On or before the Execution Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received a certificate from the financial institutions listed in Schedule II hereto executed consents and/or waivers to the Merger Agreement, and the transactions contemplated thereunder, with respect to the outstanding indebtedness owed by the Company or Standard, as the case may be, reasonably satisfactory to the Initial Purchasers.
(n) On or before the Execution Date, the Initial Purchasers shall have received certificates of each of the IssuersChief Financial Officer of the Company, dated the Treasurer of the Company and the treasurers (or other persons with responsibility for maintaining credit relationships and authorizing borrowings) of all subsidiaries having local credit facilities with more than $10 million outstanding as of March 31, 2005, substantially in the form of Exhibit D hereto.
(o) On or before the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the case of any Issuer organized under Initial Purchasers and Counsel for the laws of Initial Purchasers. The Company shall furnish to the Netherlands, in which case, Initial Purchasers such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters and documents in such quantities as the effect that:Initial Purchasers and Counsel for the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Alliance One International, Inc.)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations ------------------------------------------------- of the several Initial Purchasers to purchase and pay for the Securities shallNotes shall be subject, in their the Initial Purchasers' sole discretion, be subject to the satisfaction or waiver accuracy of the following conditions on or prior to representations and warranties of the Company and the Subsidiary Guarantors in Section 2 hereof, in each case as of the date hereof (the "Execution Date") and -------------- as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company's and any Subsidiary Guarantor's officers made pursuant to the provisions hereof, to the performance by the Company and the Subsidiary Guarantors of their respective covenants and agreements hereunder and to the following additional conditions:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, of Xxxxx & Xxxxxxx, L.L.P., counsel for the Initial Purchasers shall have received Company, to the opinion, effect set forth in Exhibit C hereto and otherwise in form and substance satisfactory to the Initial Purchasers.
(b) The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial PurchasersDate, of Milbankeach of Xxxxxxx Xxxx & Xxxxxxxxx and Xxxxxx, TweedXxxxxxxx, Xxxxxx Xxxxx & XxXxxxXxxxxxxx, each as counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement the issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Milbanksuch counsel may, Tweedto the extent that Xxxxx & Xxxxxxx L.L.P. consents, Xxxxxx rely as to certain matters of law upon the opinion of Xxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request Xxxxxxx L.L.P. referred to pass upon such mattersin paragraph (a) above.
(dc) The Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated dated, respectively, the date hereof Execution Date and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, to the effect that:
(i) they are independent accountants with respect to the Company and its consolidated subsidiaries within the meaning of the Securities Act and the applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated financial statements and schedules examined by them and included in the Final Memorandum comply in form in all material respects with the applicable accounting requirements of the Securities Act and the related published rules and regulations;
(iii) on the basis of carrying out certain specified procedures (which do not constitute an examination made in accordance with generally accepted auditing standards) that would not necessarily reveal matters of significance with respect to the comments set forth in this paragraph (iii), a reading of the minute books of the shareholders, the board of directors and any committees thereof of the Company, and inquiries of certain officials of the Company who have responsibility for financial and accounting matters, nothing came to their attention that caused them to believe that, at a specific date not more than five business days prior to the date of such letter, there were any changes in the capital stock or long-term debt of the Company consolidated or any decreases in net current assets or stockholders' equity of the Company consolidated, in each case compared with amounts shown on the December 31, 1998 unaudited consolidated balance sheet included in the Final Memorandum, or, for the period from January 1, 1999 to such specified date, there were any decreases, as compared with a period of substantially the same length of time ended on December 31, 1998, in total revenues, net income before income taxes or total or per share amounts of net income of the Company consolidated, except in all instances for changes, decreases or increases set forth in such letter;
(iv) they have carried out certain specified procedures, not constituting an audit, with respect to certain amounts, percentages and financial information that are derived from the general accounting records of the Company and its consolidated subsidiaries and are included in the Final Memorandum and have compared such amounts, percentages and financial information with such records of the Company and its consolidated subsidiaries and with information derived from such records and have found them to be in agreement, excluding any questions of legal interpretation; and
(v) on the basis of a reading of the unaudited pro forma consolidated financial statements included in the Final Memorandum, carrying out certain specified procedures that would not necessarily reveal matters of significance with respect to the comments set forth in this paragraph (v), inquiries of certain officials of the Company who have responsibility for financial and accounting matters and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the unaudited pro forma consolidated financial statements, nothing came to their attention that caused them to believe that the unaudited pro forma consolidated financial statements do not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements. In the event that the letters referred to above set forth any such changes, decreases or increases, it shall be a further condition to the obligations of the Initial Purchasers that (A) such letters shall be accompanied by a written explanation from the Company as to the significance thereof, unless the Initial Purchasers deem such explanation unnecessary, and (B) such changes, decreases or increases do not, in the sole judgment of the Initial Purchasers, make it impractical or inadvisable to proceed with the purchase and delivery of the Notes as contemplated by this Agreement and the Final Memorandum, as amended as of the date hereof. References to the Final Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(e1) The Initial Purchasers shall have received a certificate, dated the Closing Date, of the Chief Executive Officer and the Chief Financial Officer of the Company to the effect that:
(i) the representations and warranties of the Issuers contained Company in this Agreement shall be are true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and Final Memorandum, as of the date made and on and amended or supplemented as of the Closing Date, does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Issuers shall have Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum
(exclusive of any amendment or supplement thereto after the date hereof), ii) subsequent to the date as of the most recent financial statements in such Memorandum (whether or not audited), there shall have been no event or development, and no which information shall have become known, that, individually or is given in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Final Memorandum, neither the conduct Company nor any of the business and operations of each of the Issuers shall not have been interfered its subsidiaries has sustained any material loss or interference with by strike, labor dispute, slowdown, work stoppage, their respective businesses or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court labor dispute or any legal or governmental actionproceeding, order and there has not been any material adverse change, or decreeany development involving a prospective material adverse change, andin the condition (financial or otherwise), management, business prospects, net worth or results of operations of the Company or any of its subsidiaries, except in each case as otherwise stated therein, described in or contemplated by the properties of each of the Issuers shall not have sustained any loss or damage Final Memorandum (whether or not insured) as a result exclusive of any such occurrence, except any such interference, loss amendment or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectsupplement thereto).
(h2) The Initial Purchasers shall have received a certificate of the Issuerscertificate, dated the Closing Date, signed on behalf of the chairman of the board and the principal financial or accounting officer of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Subsidiary Guarantor, to the effect that:that the representations and warranties of such Subsidiary Guarantor in this Agreement are true and correct as if made on and as of the Closing Date and such Subsidiary Guarantor has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date.
(e) Subsequent to Execution Date, there shall not have been any decrease in the rating of any of the Company's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(f) On or before the Closing Date, the Initial Purchasers, Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx and Xxxxxxx, Xxxx & Xxxxxxxxx shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters and documents in such quantities as the Initial Purchasers and counsel for the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Note Purchase Agreement (Global Imaging Systems Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx(i) Xxxxxxxx and Xxxxx LLP, in-house legal counsel for the IssuersIssuers and the Guarantors in form and substance reasonably acceptable to the Initial Purchasers substantially in the form of Exhibit A, (ii) Xxxxx and Roca LLP, Nevada counsel, Xxxxx Xxxx LLP, Colorado counsel, for the Issuers and the Guarantors in form and substance reasonably acceptable to the Initial Purchasers substantially in the form of Exhibit B-1 and B-2, respectively, (iii) Xxxxx and Roca LLP, Nevada local gaming counsel, Xxxxxxx & Xxxx LLP, Missouri local gaming counsel, Xxxxx Xxxx LLP, Colorado local gaming counsel and Xxxxxxxx & Xxxxx Law Firm, Iowa local gaming counsel for the Issuers and the Guarantors, in form and substance satisfactory reasonably acceptable to the Initial Purchasers substantially in their reasonable discretionthe form of Exhibit C-1, C-2, C-3 and C-4, respectively and (iv) Xxxx Xxxxxxxxxx, Esq., general counsel to the Company in form and substance reasonably acceptable to the Initial Purchasers substantially in the form of Exhibit D.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx LLP, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(di) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants Deloitte a comfort letter or letters dated the date hereof hereof, addressed to the Initial Purchasers in form and substance satisfactory to the Representative, covering the financial information in the Pricing Disclosure Package and other customary matters. On the Closing Date, the Initial Purchasers shall have received from Deloitte a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(eii) On the date hereof, the Initial Purchasers shall have received from PWC a comfort letter dated the date hereof, addressed to the Initial Purchasers in form and substance satisfactory to the Representative. On the Closing Date, the Initial Purchasers shall have received from PWC a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof.
(d) The representations and warranties of the Issuers and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution (in the case of the Company and the Guarantors) and on and as of the Closing Date (in the case of the Issuers and the Guarantors) as if made on and as of the Closing Date; the statements of any Authorized Person the Issuers’ 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; the Issuers and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent audited financial statements in such Pricing Disclosure Package and the Final Memorandum (whether exclusive of any amendment or not auditedsupplement thereto), there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent audited financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Chief Executive Officer, President or any Senior Vice President and the Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and Guarantors and, upon the execution and delivery of the Joinder Agreement, the Issuers and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent audited financial statements in the Pricing Disclosure Package and the Final Memorandum, no event or development has occurred, and no information has become known to the Company, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect;
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently); and
(iv) except as may be required by the Gaming Authorities in connection with the registration of the Exchange Securities contemplated by the Registration Rights Agreement, all authorizations, approval or consents under the Gaming Laws necessary in connection with the offering, issuance and sale of the Securities have been obtained.
(h) The Initial Purchasers shall have received a certificate of the Issuers, Company’s Chief Financial Officer in form and substance satisfactory to the Initial Purchasers dated as of the Time of Execution and the Closing Date.
(i) On the Closing Date, signed the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors and such agreement shall be in full force and effect.
(j) On the Closing Date, (i) the Company shall have repaid in full all obligations due and payable under the Existing Senior Secured Credit Agreement and (ii) promptly upon receipt of such pay-off letter, the Company shall have furnished to the Initial Purchasers a pay-off letter evidencing the same in form and substance reasonably satisfactory to the Initial Purchasers.
(k) On the Closing Date, the Initial Purchasers shall have received the Joinder Agreement duly executed by Affinity Finance and such agreement shall be in full force and effect.
(l) Prior to or concurrently with the issuance of the Securities on behalf of each Issuer by two Authorized Persons (except the Closing Date, the Senior Secured Credit Agreement shall have been executed, delivered and in full force and effect with terms and conditions as described in the case Pricing Disclosure Package and the Final Memorandum.
(m) Except as may be required by the Gaming Authorities in connection with the registration of any Issuer organized the Exchange Securities contemplated by the Registration Rights Agreement, all authorizations, approval or consents under the laws Gaming Laws necessary in connection with the offering, issuance and sale of the NetherlandsSecurities have been obtained. On or before the Closing Date, the Initial Purchasers and 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 Issuers or the Guarantors. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in which caseall material respects to the Initial Purchasers and counsel for the Initial Purchasers. Any Issuer or any Guarantor, as applicable, shall furnish to the Initial Purchasers such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)documents, to opinions, certificates, letters, schedules and instruments in such quantities as the effect that:Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsthe opinion and negative assurance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxx Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); StroeterLLP, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), special counsel for the Issuer and/or the Guarantors, as the case may be, in each caseCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers Purchasers, and substantially as set forth in their reasonable discretionAnnex B-1 and B-2, respectively, hereto. In rendering such opinion, Xxxxx Xxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date opinion and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuersnegative assurance letter, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance reasonably satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx LLP, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof hereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers with respect to the audited and any unaudited financial information in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information in the Final Memorandum.
(ed) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct correct, in all material respects, on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects; the statements of any Authorized Person the Company’s and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct correct, in all material respects, on and as of the date made and on and as of the Closing Date; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 be reasonably likely expected to have a Material Adverse Effect.
(fe) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely expected to have a Material Adverse Effect.
(hg) The Initial Purchasers Representative shall have received a certificate of from the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons its (except in the case of i) Chief Executive Officer, President or any Issuer organized under the laws of the NetherlandsSenior Vice President or executive officer and (ii) Chief Financial Officer, in which caseController, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), Treasurer or principal financial or accounting officer to the effect that to such officers’ knowledge after due inquiry:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct, in all material respects, on and as of the Time of Execution and on and as of the Closing Date; provided, that each such representation or warranty that contains a materiality qualification in the text of such representation or warranty shall be true and correct in all respects, and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or development has occurred, and no information has become known to the Company or any Guarantor, that:, individually or in the aggregate, has or would be reasonably expected to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Guarantors, and such agreement shall be in full force and effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Company, the Guarantors and the Trustee, and such agreement shall be in full force and effect at all times from and after the Closing Date.
(j) The Notes shall be eligible for clearance and settlement through The Depository Trust Company.
(k) On the Closing Date, the Initial Purchasers shall have received an amendment to the Company’s revolving credit and security agreement, as amended, to allow for the offering of the Notes and the incurrence of debt under the Indenture executed by the Company, the Guarantors and the lenders party thereto. On or before the Closing Date, the Initial Purchasers and 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Representative and counsel for the Initial Purchasers. The Company and the Guarantors shall furnish to the Representative such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Representative shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Great Lakes Dredge & Dock CORP)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US Ropes and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg Xxxx LLP and Xxxxxxxxx & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law)PLLP, counsel for the Issuer and/or the Guarantors, as the case may be, in each caseIssuers and NB Acquisition, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to counsel for the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory substantially to the Initial Purchasers effect set forth in their reasonable discretion.Exhibit B and Exhibit C.
(cb) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx LLP, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(ed) The representations and warranties of NB Acquisition contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and the representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and in all material respects on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Issuers’ and NB Acquisition’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date; the Issuers and NB Acquisition shall have performed all covenants and agreements and satisfied all conditions on their respective part to be performed or satisfied hereunder at or prior to the Closing Date; 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 Memorandum (whether or not audited)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 be reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct of the business and operations of each none of the Issuers or any of the Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers shall have received a certificate of each of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the NetherlandsIssuers by its respective Chairman of the Board, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such IssuerChief Financial Officer (or similar position), to the effect that:
(i) the representations and warranties of the Issuers contained in this Agreement are true and correct in all material respects on the Closing Date, and the Issuers have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, except as disclosed in the Final Memorandum, since the 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 be reasonably likely to have a Material Adverse Effect; and
(iii) to the knowledge of the Issuers, the sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect.
(i) The Notes shall be eligible for clearance and settlement through the Depository Trust Company.
(j) The Notes shall be designated Portal-eligible securities in accordance with the rules and regulations of the NASD.
(k) On the Closing Date, the Company shall have entered into the Credit Agreement in form and substance reasonably satisfactory to the Initial Purchasers; and
(l) The “Transaction,” as such term is defined in the Final Memorandum, will be consummated substantially as described in the Final Memorandum. On or before the Closing Date, the Initial Purchasers and 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 Issuers, NB Acquisition and the Subsidiaries as they shall have heretofore reasonably requested from the Issuers and NB Acquisition. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Nb Finance Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities Notes shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers Purchaser shall have received opinions, dated as of (i) the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of Xxx Xxx XxxxxLxxxx Lxxxxxx & Sxxx LLP, in-house legal counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchaser, to the effect set forth in Exhibit A, (ii) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Mxxxxxxx Hxxxxxx & Partner, German counsel to the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchaser, (iii) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Bxxx-Xxxxx Dragsted Law Firm, Danish counsel to the Company, in form and substance reasonably satisfactory to the Initial Purchasers Purchaser, (iv) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Nxxxxxxx Xxxxxxxxx, United Kingdom counsel to the Company, in their reasonable discretionform and substance reasonably satisfactory to the Initial Purchaser, and (v) the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of MB & Associes, French counsel to the Company, in form and substance reasonably satisfactory to the Initial Purchaser.
(cb) On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial PurchasersPurchaser, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of Milbank, Tweed, Cxxxxx Xxxxxx & XxXxxxRxxxxxx LLP, counsel for the Initial PurchasersPurchaser, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, Milbank, Tweed, Cxxxxx Xxxxxx & XxXxxx Rxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The On the date hereof, the Initial Purchasers Purchaser shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Datehereof, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser with respect to the audited and any unaudited financial information in the Preliminary Memorandum. On the Closing Date, the Initial Purchaser shall have received from the Independent Accountants a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchaser, which shall extend to the financial information, if any, contained in the Final Memorandum and not contained in the Preliminary Memorandum.
(ed) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company's officers made pursuant to in any certificate signed by them delivered on or as of the Closing Date 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; the Issuers Company shall have performed in all material respects all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)Offering 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 be reasonably likely to have a Material Adverse Effect.
(fe) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gf) Subsequent to the date of the Memorandummost recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, organized labor dispute, labor slowdown or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hg) The Initial Purchasers Purchaser shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in its Chief Executive Officer or any President or Vice President and the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Company has 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;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Offering 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 be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at the Closing Date.
(i) At or on the Closing Date the trustee for the Company's 8 7/8% senior secured notes due 2009 (the "Existing Notes") shall have received from the Company an irrevocable notice of redemption of all such Existing Notes effective as of the time of delivery of and payment for the Notes. Concurrently with the time of delivery of and payment for the Notes by the Initial Purchaser, the Company shall irrevocably deposit or cause to be deposited with such trustee an amount sufficient to pay and discharge the principal of, premium and interest on the Existing Notes to such time.
(j) On or before the Closing Date, the Company shall have caused to be delivered the following documents and instruments with regard to the Collateral:
(i) to the Trustee (with a copy to the Initial Purchaser), evidence of all registrations or filings in each of the offices where such registrations or filings are necessary or, in the opinion of the Initial Purchaser, desirable to perfect the Liens created or intended to be created thereby;
(ii) to the Initial Purchaser and the Trustee, evidence satisfactory to them of the payment of all filing fees and taxes in connection with the filings and registrations contemplated in clause (i) above and acknowledgment copies of all such filings; and
(iii) to the Initial Purchaser and the Trustee, evidence as may be reasonably requested that all other actions necessary to perfect and, subject to Liens expressly permitted to exist by the terms of the applicable Security Document, protect the Liens created or intended to be created by the Security Documents have been taken. On or before the Closing Date, the Initial Purchaser and counsel for the Initial Purchaser shall have received from the Company 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel for the Initial Purchaser. The Company shall furnish to the Initial Purchaser such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Cahixx Xxxxxx & XxXxxxXeinxxx, counsel xxunsel 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, Milbank, Tweed, Cahixx Xxxxxx & XxXxxx shall Xeinxxx xxxll have received and may rely upon such certificates and other documents and information as it they may reasonably request to pass upon such matters. In addition, in rendering their opinion, Cahixx Xxxxxx & Xeinxxx xxx state that their opinion is limited to matters of New York, Delaware corporate and federal law.
(dc) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters Coopers & Lybrxxx X.X.P. and KPMG Peat Marwick L.L.P. dated the date hereof December 18, 1997, from Price Waterhouse LLP and Arthxx Xxxexxxx XXX dated December 22, 1997, and from Coopers & Lybrxxx X.X.P. dated the Closing Date, in each case, customary comfort letters addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and in all material respects as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers shall have performed complied in all material respects with all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), and subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)the Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or material adverse change in the aggregatebusiness, has condition (financial or would be reasonably likely to have other), results of operations or prospects of the Issuers, taken as a Material Adverse Effectwhole, except as set forth in, or contemplated by, the Memorandum.
(fe) The issuance and sale of the Securities by the Issuers hereunder shall not be enjoined (temporarily or permanently) on the Closing DateDate and no restraining order or other injunctive order shall have been issued or any action, suit or proceeding shall have been commenced with respect to this Agreement or any other transactions hereby, before any court or governmental authority (including, without limitation, the FCC).
(f) rial to the Issuers, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or other), results of operations or prospects of the Issuers, taken as a whole, and, other than as contemplated by the Memorandum, there shall not have been any change in the capital stock or long-term indebtedness of any Issuer that is material to the business, condition (financial or other), results of operations or prospects of the Issuers, taken as a whole.
(g) Subsequent to the date as of which information is given in the Memorandum, the conduct of the business and operations of each the Company or any of the Issuers shall its subsidiaries has not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each the Company or any of the Issuers shall its subsidiaries have not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to not have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its President and Chief Executive Officer and Senior Vice President and Chief Financial Officer of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Company, to the effect that:
(i) The representations and warranties of the Issuers in this Agreement are true and correct in all material respects as if made on and as of the Closing Date (other than to the extent any such representation or warranty is expressly made to a certain date), and each Issuer has performed in all material respects all covenants and agreements and satisfied, in all material respects, all conditions on their part to be performed or satisfied hereunder, to the extent a party thereto, at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statement in the Memorandum, no event or events have occurred, nor has any information become known that, individually or in the aggregate, would have a Material Adverse Effect;
(iv) Subsequent to the respective dates as of which information is given in the Memorandum, except in each case as described in or as contemplated by the Memorandum, none of the Issuers has incurred any liabilities or obligations, direct or contingent, that are material to the Issuers, taken as a whole, or entered into any transactions that, individually or in the aggregate, would have a Material Adverse Effect; and there has been no change in the capital stock or long-term indebtedness of the Issuers that individually or in the aggregate would have a Material Adverse Effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect on the Closing Date.
(j) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers as they shall have heretofore reasonably requested from the Issuers. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinionsopinion letters, each in form and substance satisfactory to the Initial Purchasers and (other than with respect to clause (i) below) substantially as set forth in Exhibit A hereto, each dated as of the Closing Date and addressed to the Initial PurchasersPurchasers with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law)i) Xxxxx Xxxxx L.L.P., counsel for the Issuer and/or Company and the Guarantors, (ii) Xxxxx Xxxxxxx Xxxxxxxx Xxxx + Xxxxxxxxx PC, special Colorado counsel for the Company and the Guarantors, (iii) Xxxxxx Bond Xxxxxxxxx (US) LLP, special Florida counsel for the Company and the Guarantors, (iv) Xxxxxxx & Xxxxxxx, P.A., special North Carolina counsel for the Company and the Guarantors, and (v) Xxxx, Xxxxxxx & Cleveland, PLLC, special Washington counsel for the Company and the Guarantors. In rendering such opinions, such counsel shall have received and may rely upon such certificates and other documents and information as the case they may be, in each case, in form and substance satisfactory reasonably request to the Initial Purchasers in their reasonable discretionpass upon such matters.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxx Xxxx & XxXxxxXxxxxxxx LLP, 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, Milbank, Tweed, Xxxxxx Xxxxx Xxxx & XxXxxx Xxxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(dc) The On the date hereof, the Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters dated the date hereof hereof, in form and substance satisfactory to counsel for the Initial Purchasers, with respect to the audited and any unaudited financial information included or incorporated by reference in the Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers, which shall refer to the comfort letter dated the date hereof and reaffirm or update, as of a more recent date, the information stated in the comfort letter dated the date hereof and similarly address the audited and any unaudited financial information included or incorporated by reference in the Final Memorandum.
(d) [Reserved.]
(e) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package and 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 Memorandum (whether or not audited)Pricing Disclosure Package and the 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 be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in its Chief Executive Officer and the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution and on and as of the Closing Date, and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final 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 be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently).
(h) The Company and the Guarantors shall have executed and delivered the Base Indenture and the Third Supplemental Indenture, each in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof.
(i) No registration under the Act of the Securities is required in connection with the sale of the Securities to the Initial Purchasers as contemplated by this Agreement and the Pricing Disclosure Package and the Final Memorandum or in connection with the initial resale of the Securities by the Initial Purchasers in accordance with Section 8 of this Agreement, and the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Securities in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Securities is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the representations of the Company contained in this Agreement and of the Initial Purchasers in Section 8 hereof regarding the absence of a general solicitation in connection with the sale of such Securities to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. On or before the Closing Date, the Initial Purchasers and 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 or the Guarantors. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company or any Guarantor, as applicable, shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (LGI Homes, Inc.)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Shares and any Additional Closing Date for the Optional Shares. The obligation obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be Purchased Shares are subject to the satisfaction absence from any certificates, opinions, written statements or waiver letters furnished to the Initial Purchasers pursuant to this Section 7 of any misstatement or omissions and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchasers:
(ai) On the Closing Date, the The Initial Purchasers shall have received opinions, dated as an opinion of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On and Initial Purchasers’ Counsel, dated the Closing Date, of Vxxxxx & Exxxxx L.L.P., counsel to the Company, addressed to the Initial Purchasers and substantially in the form of Exhibit B hereto.
(ii) The Initial Purchasers shall have received an opinion of counsel in form and substance satisfactory to the Initial Purchasers and Initial Purchasers’ Counsel, dated the Closing Date, of the Sxxxxxxx Law Firm, L.L.C., counsel for the Company, addressed to the Initial Purchasers and substantially in the form of Exhibit C hereto.
(iii) The Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the of Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Initial Purchasers’ Counsel, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(div) The Initial Purchasers shall have received from KPMG LLP, independent public accountants for the Independent Accountants Company, a comfort “comfort” letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers and Initial Purchasers’ Counsel.
(ev) The Initial Purchasers shall have received letters from each of Netherland Sxxxxx and Coutret, each being independent petroleum engineers for the Company, dated, respectively, as of the date hereof and as of the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Initial Purchasers’ Counsel, with respect to the estimated quantities of the Company’s reserves, the future net revenues from those reserves and their present value as set forth in the Offering Memorandum (or, if the Offering Memorandum is not in existence, the most recent Preliminary Offering Memorandum) and such related matters as the Initial Purchasers shall reasonably request.
(vi) The Initial Purchasers shall have received from each of the Company’s officers and directors listed on Schedule 2 hereto an executed Lock-Up Agreement in substantially in the form of Exhibit C attached hereto.
(vii) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(viii) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, or the other Offering Documents.
(ix) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company or any of the Subsidiaries, not contemplated by the Offering Memorandum that is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Offering Documents, or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors that makes any statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and Initial Purchasers’ Counsel require the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(x) The Initial Purchasers shall have received certificates dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company (in their capacities as such) to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with.
b. The issuance and sale of the Purchased Shares pursuant to this Agreement or the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company or any of the Subsidiaries, not contemplated by the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors that makes any statement made in the Offering Memorandum untrue or that requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
(xi) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated hereby and thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fxii) The sale All proceedings taken in connection with the issuance of the Securities hereunder Purchased Shares and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial Purchasers and Initial Purchasers’ Counsel. The Initial Purchasers and Initial Purchasers’ Counsel shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(gxiii) Subsequent to The Purchased Shares shall have been approved for trading on PORTAL.
(xiv) Since the date of the Memorandumthis Agreement, the conduct of the business and operations of each of the Issuers there shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or any announcement by any court or governmental action“nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, order or decree, and, except as otherwise stated therein, the properties of each that (A) it is downgrading its rating assigned to any debt securities of the Issuers shall Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectdetermined.
(hxv) The On or before the Closing Date, the Initial Purchasers shall have received a certificate of the IssuersRegistration Rights Agreement executed by the Company, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, and such certificate agreement shall be signed by one Authorized Person who in full force and effect.
(xvi) The Company shall have furnished or caused to be furnished to the managing director Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel to the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx XxxxxMilbank, in-house legal Tweed, Xxxxxx & XxXxxx LLP, counsel for the IssuersCompany, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, substantially the form set forth in Annex B.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers Purchasers, of Xxxx X. Xxxxxxxx, Senior Vice President, General Counsel and Corporate Secretary for the Company, in their reasonable discretion.form and substance reasonably satisfactory to counsel for the Initial Purchasers, substantially the form set forth in Annex C.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC, aviation counsel for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, substantially in the form set forth in Annex D.
(d) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of MilbankXxxxxx, Tweed, Xxxxxx Xxxxx & XxXxxxBockius LLP, 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, MilbankXxxxxx, Tweed, Xxxxxx Xxxxx & XxXxxx Xxxxxxx LLP shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(de) The On the date hereof and on the Closing Date (i) the Initial Purchasers shall have received from the Independent Accountants Ernst & Young LLP a comfort letter or letters letters, dated the date hereof and the Closing Daterespective dates of delivery thereof, in form and substance satisfactory to the counsel for of the Initial Purchasers, with respect to the audited and any unaudited or pro forma financial information in the Pricing Disclosure Package and Final Memorandum and (ii) the Initial Purchasers shall have received from KPMG LLP a comfort letter, dated the respective dates of delivery thereof, in form and substance satisfactory to the counsel of the Initial Purchasers, with respect to the audited and any unaudited or pro forma financial information of the Dart Joint Venture in the Pricing Disclosure Package and Final Memorandum.
(ef) The representations and warranties of the Issuers Company and the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof Time of Execution (but if specified to be given as of a specified date, shall be given as of such date) and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company's and each Guarantor'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; the Issuers Company and each Guarantor shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after Pricing Disclosure Package and the date hereof)Final Memorandum, subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)Pricing Disclosure Package and the 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 be reasonably likely to have a Material Adverse Effect.
(fg) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and the Guarantors and such agreement shall be in full force and effect at all times from and after the Closing Date.
(h) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gi) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Memorandum except as set forth in the Pricing Disclosure Package and the Final Offering Memorandum, the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strikerespect to the business of the Company and its Subsidiaries, labor disputetaken as a whole, slowdown, work stoppage, from fire, floodexplosion, hurricane, accident flood or other calamity (calamity, whether or not insured) covered by insurance, or by from any labor dispute or court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hj) The Initial Purchasers shall have received a certificate of the Issuers, Company dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)President or any Senior Vice President and its Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company and the Guarantors contained in this Agreement are true and correct on and as of the Time of Execution (but if specified to be given as of a specified date, shall be given as of such date) and on and as of the Closing Date, and the Company and the Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Pricing Disclosure Package and the Final 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 be reasonably likely to have a Material Adverse Effect; and
(iii) the sale of the Securities hereunder has not been enjoined (temporarily or permanently). On or before the Closing Date, the Initial Purchasers and 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 will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions Firm Notes on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed the Optional Notes on the Additional Closing Date, if any, is subject to the accuracy of the representations and warranties contained herein, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions unless waived in writing by the Initial Purchasers, Purchaser:
(i) The Initial Purchaser shall have received an opinion of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for to the Issuer and/or the Guarantors, as the case may be, in each case, Company in form and substance satisfactory to the Initial Purchasers Purchaser and Cahill Gordon & Reindel, counsel to the Initial Purchaser, dxxxx xxx Xxxxing Xxxx, and again on the Additional Closing Date, if any, of Troutman Sanders LLP, substantially in their reasonable discretionthe form of Exhibit A xxxxxx. Xx xxxxering such opinion, Troutman Sanders LLP shall have received and may rely upon sxxx xxxxixxxxxxx and other documents and information, including one or more opinions of local counsel reasonably acceptable to the Initial Purchaser and Cahill Gordon & Reindel, counsel to the Initial Purchaser, ax xxxx xxx xxasonably xequest to pass upon such matters.
(bii) On the Closing Date, the The Initial Purchasers Purchaser shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, and again on the Initial Purchasers shall have received the opinionAdditional Closing Date, in form and substance satisfactory if any, of Cahill Gordon & Reindel, counsel to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Initial PurchasersPurchaser, with respect to xxxxxxx xo txx xxxxiciency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx Cahill Gordon & XxXxxx Reindel shall have received and may rely upon such certificates and upox xxxx xxxxxxicaxxx xxx other documents and information as it they may reasonably request to pass upon such matters. In addition, in rendering their opinion, Cahill Gordon & Reindel may state that their opinion is limited to xxxxxxs ox Xxx Xork, Delaware corporate and federal law.
(diii) The Initial Purchasers On the date of this Agreement and on the Closing Date and again on the Additional Closing Date, if any, Ernst & Young LLP shall have received from furnished to the Independent Accountants Initial Purchaser, at the request of the Company, a comfort letter or letters letter, dated the date hereof respective dates of delivery thereof and addressed to the Closing DateInitial Purchaser, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser, containing statements and information of the type customarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Final Circular; provided, that the letter delivered on the Closing Date or the Additional Closing Date, as the case may be, shall use a "cutoff date no more than three business days prior to such Closing Date or such Additional Closing Date, as the case may be.
(eiv) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date, and again on the Additional Closing Date, if any; the statements of any Authorized Person 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; the Issuers Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except or the Additional Closing Date, as described the case may be.
(v) Subsequent to the execution and delivery of this Agreement and since the date of the most recent financial statements in the Memorandum Final Circular (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum ) (whether or not audited), there shall have been a) no event or development, and no information condition of a type described in Section 2(c) hereof shall have become knownoccurred or shall exist, which event or condition is not described in the Circular (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Initial Purchaser makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement and the Circular; (b) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company or any of its Subsidiaries by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and (c) there shall not have occurred any event or development relating to or involving any of the Company or the Subsidiaries or any of the officers or directors of the Company or the Subsidiaries that makes any statement made in the Final Circular untrue or that, individually or in the aggregateopinion of the Company and its counsel or the Initial Purchaser and its counsel, has requires the making of any addition to or would change in the Final Circular in order to state a material fact required by any applicable law, rule or regulation to be reasonably likely stated therein or necessary in order to have a Material Adverse Effectmake the statements made therein not misleading.
(fvi) The None of the issuance and sale of the Securities hereunder Notes pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against the Company or against the Initial Purchaser relating to the issuance of the Notes or the Initial Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement, the Final Circular or the other Transaction Documents.
(vii) The Initial Purchaser shall have received on and as of the Closing Date and the Additional Closing Date, if any, a certificate of the chief financial officer of the Company and one additional senior executive officer of the Company who is satisfactory to the Initial Purchaser (a) confirming that such officers have carefully reviewed the Final Circular and, to the best knowledge of such officers, the representation of the Company set forth in Section 2(a) hereof is true and correct, (b) confirming that the other representations and warranties of the Company in this Agreement are true and correct and that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date and Additional Closing Date, (c) to the effect set forth in paragraphs (iv), (v) and (vi) of this Section 7; and (d) confirming that, at the Closing Date, or the Additional Closing Date, as the case may be, and, after giving effect to the consummation of the transactions contemplated by this Agreement or the other Transaction Documents, there exists no Default or Event of Default (as defined in the Indenture).
(viii) Each of the Transaction Documents and each other agreement or instrument executed in connection with the Transactions shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(ix) All proceedings taken in connection with the issuance of the Notes and the transactions contemplated by this Agreement, the other Transaction Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(x) The Company shall apply the proceeds necessary from the issuance and sale of the Notes as described under "Use of Proceeds" in the Final Circular.
(xi) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(gxii) Subsequent The Company shall have furnished or caused to be furnished to the date Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested.
(xiii) 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 MemorandumClosing Date or the Additional Closing Date, as the conduct case may be, prevent the issuance or sale of the business Notes; and operations no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the Notes.
(xiv) The Initial Purchaser shall have received on and as of the Closing Date or the Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the Company and its Significant Subsidiaries in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the Initial Purchaser may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(xv) The "lock-up" agreements, each substantially in the form of Exhibit B hereto, between the Initial Purchaser and each of the Issuers shall not have been interfered with by strikeshareholders, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each officers and directors of the Issuers shall not have sustained any loss Company listed on Exhibit B-l hereto relating to sales and certain other dispositions of shares of Stock or damage (whether or not insured) certain other securities, delivered to the Initial Purchaser as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuersdate hereof, dated shall be in full force and effect on the Closing Date or the Additional Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in as the case of any Issuer organized under may be. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the laws of provisions hereof only if they are reasonably satisfactory in all material respects to the Netherlands, in which case, Initial Purchaser and counsel to the Initial Purchaser. The Company shall furnish to the Initial Purchaser such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Arris Group Inc)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Notes and the Guarantees. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be Notes and the Guarantees are subject to the satisfaction absence from any certificates, opinions, written statements or waiver letters furnished to the Initial Purchaser pursuant to this Section 8 of any misstatement or omission and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchaser:
(ai) On The Initial Purchaser shall have received an opinion in form and substance reasonably satisfactory to the Initial Purchaser, dated the Closing Date, of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, counsel to the Company covering the matters in substantially the form set forth on Exhibit B hereto.
(ii) The Initial Purchasers Purchaser shall have received opinionsan opinion of Xxxxxx & Xxxxxxx LLP, dated as of the Closing Date and addressed counsel to the Initial PurchasersPurchaser, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On dated the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Initial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(diii) The Initial Purchasers Purchaser shall have received from Deloitte & Touche LLP, independent public accountants for the Independent Accountants a comfort letter or letters dated Company and Picochip, on each of the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser and counsel to the Initial Purchaser, letters dated the date hereof and the Closing Date confirming that is an independent public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder 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 or incorporated by reference in the Disclosure Package and the Offering Memorandum.
(eiv) The Initial Purchaser shall have received from each of the officers and directors listed on Schedule IV hereto an executed Lock-Up Agreement in substantially the form of Exhibit C hereto.
(v) The representations and warranties of the Issuers Company and each of the Guarantors contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person made pursuant to any certificate delivered in accordance with the provisions hereof shall be true Company and correct on and as each of the date made and on and as of the Closing Date; the Issuers Guarantors shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or any of the Guarantors or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties, or results of operations of the Company or any Subsidiary or Guarantor, not disclosed in the Disclosure Package and the Offering Memorandum that is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any Subsidiary or Guarantor, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(viii) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. The representations and warranties of the Company and each of the Guarantors contained in this Agreement are true and correct in all material respects as if made on and as of the Closing Date (other than representations and warranties qualified by materiality, in which case such representations shall be true and correct in all respects) and, as of the Closing Date the Company and each of the Guarantors shall have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
b. None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents have been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued; and there has not been any legal action, statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or any of the Guarantors or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Disclosure Package and the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (i) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties, or results of operations of the Company or any Subsidiary or Guarantor, not disclosed in the Disclosure Package and the Offering Memorandum that is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any Subsidiary or Guarantor, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchaser) and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fx) The sale All proceedings taken in connection with the issuance of the Securities hereunder Notes and the Guarantees and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial Purchaser and counsel to the Initial Purchaser.
(gxi) Subsequent to Since the date of the Memorandumthis Agreement, the conduct of the business and operations of each of the Issuers there shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or any announcement by any court “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company or governmental actionany of the Guarantors, order or decree(B) it is reviewing its rating assigned to any debt securities of the Company or any of the Guarantors with a view to possible downgrading, andor with negative implications, except as otherwise stated therein, the properties of or direction not determined.
(xii) The Company and each of the Issuers Guarantors shall not have sustained any loss furnished or damage (whether or not insured) caused to be furnished to the Initial Purchaser such further certificates and documents as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, Initial Purchaser shall have or be reasonably likely to have a Material Adverse Effectrequested.
(hxiii) The Initial Purchasers shall have received a certificate of the Issuers, dated At the Closing Date, signed on behalf of the Company and each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the NetherlandsGuarantors and the Trustee shall have entered into the Indenture and the Initial Purchaser shall have received counterparts, conformed as executed, thereof and the Notes and the Guarantees shall have been duly executed and delivered by the Company and each of the Guarantors and duly authenticated by the Trustee. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in which case, all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Company and each of the Guarantors shall furnish to the Initial Purchaser such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the The Initial Purchasers shall have received the opinion, opinion in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial PurchasersDate, of MilbankWeil, Tweed, Xxxxxx Gotshal & XxXxxxMangxx XXX, counsel for the Initial PurchasersIssuers, with respect to certain legal matters relating to this Agreement and such other related matters as substantially in the Initial Purchasers may reasonably requireform of Exhibit B hereto. In rendering such opinion, MilbankWeil, Tweed, Xxxxxx Gotshal & XxXxxx Mangxx XXX shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(db) The Initial Purchasers shall have received from the Independent Accountants a comfort letter an opinion or letters opinions, dated the date hereof Closing Date, of Lathxx & Xatkxxx, xxunsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and certain FCC regulatory matters, and such other related matters as the Initial Purchasers may require. In rendering such opinion or opinions, Lathxx & Xatkxxx xxxll have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion or opinions, Lathxx & Xatkxxx xxx state that their opinion or opinions is limited to matters of New York, California, Delaware corporate and federal law.
(c) The Initial Purchasers shall have received customary comfort letters from PricewaterhouseCoopers, LLP, Arthxx Xxxexxxx XXX, KPMG Peat Marwick LLP and BDO Seidxxx XXX, dated on or prior to the Closing Date, in each case addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and in all material respects as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers shall have performed complied in all material respects with all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), and subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)the Offering Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or material adverse change in the aggregatebusiness, has condition (financial or would be reasonably likely to have other), results of operations or prospects of the Issuers, taken as a Material Adverse Effectwhole, except as set forth in, or contemplated by, the Offering Memorandum.
(fe) The issuance and sale of the Securities by the Issuers hereunder shall not be enjoined (temporarily or permanently) on the Closing DateDate and no restraining order or other injunctive order shall have been issued or any action, suit or proceeding shall have been commenced with respect to this Agreement or any other transactions hereby, before any court or governmental authority (including, without limitation, the FCC).
(f) Subsequent to the date as of which information is given in the Offering Memorandum, except as described in or as contemplated by the Offering Memorandum, none of the Issuers shall have incurred any liabilities or obligations, direct or contingent (other than in the ordinary course of business) that are material to the Issuers, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or other), results of operations or prospects of the Issuers, taken as a whole, and, other than as contemplated by the Offering Memorandum, there shall not have been any change in the capital stock or long-term indebtedness of any Issuer that is material to the business, condition (financial or other), results of operations or prospects of the Issuers, taken as a whole.
(g) Subsequent to the date as of which information is given in the Offering Memorandum, the conduct of the business and operations of each the Company or any of the Issuers shall its subsidiaries has not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each the Company or any of the Issuers shall its subsidiaries have not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to not have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Vice President and Assistant Secretary of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Company, to the effect that:
(i) The representations and warranties of the Issuers in this Agreement are true and correct in all material respects as if made on and as of the Closing Date (other than to the extent any such representation or warranty is expressly made to a certain date), and each Issuer has performed in all material respects all covenants and agreements and satisfied, in all material respects, all conditions on their part to be performed or satisfied hereunder, to the extent a party thereto, at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Offering Memorandum, except as described in the Offering Memorandum, no event or events have occurred, nor has any information become known that, individually or in the aggregate, would have a Material Adverse Effect;
(iii) The issuance and sale of the Securities by the Issuers hereunder has not been enjoined (temporarily or permanently) by any court or governmental agency or body (including without limitation, the FCC); and
(iv) Subsequent to the respective dates as of which information is given in the Offering Memorandum, except in each case as described in or as contemplated by the Offering Memorandum, none of the Issuers has incurred any liabilities or obligations, direct or contingent, that are material to the Issuers, taken as a whole, or entered into any transactions that, individually or in the aggregate, would have a Material Adverse Effect; and there has been no change in the capital stock or long-term indebtedness of the Issuers that individually or in the aggregate would have a Material Adverse Effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect on the Closing Date.
(j) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers as they shall have heretofore reasonably requested from the Issuers. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the several Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, Bonds shall be subject to the satisfaction or waiver accuracy on the date hereof and on the Closing Date of the following conditions representations and warranties made herein on or prior the part of the Company and of any certificates furnished by the Company on the Closing Date and to the Closing Datefollowing conditions:
(a) On At the Closing Date, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order of the Commission under the Public Utility Holding Company Act of 1935 (the "Holding Company Act") authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase Agreement.
(b) At the Closing Date, the Initial Purchasers shall have received from Mark G. Otts, Esq., Senior Counsel- Corporatx xxx Xxxxrities of Entergy Services, Inc., and Thelen Reid & Priest LLP opinions, dated the Closinx Xxxx, substantially in the forms set forth in Exhibits A and B hereto, respectively (it being understood that Mr. Otts may rely on an opinion of Orgain, Bexx & Xxxker, L.L.P. as to matters xx xxx oxxxxon xxxxxxng to Texas law provided that the Initial Purchasers are addressees to, or are otherwise entitled to rely on, such opinion), (i) with such changes therein as may be agreed upon by the Company and the Initial Purchasers with the approval of the Closing Date and addressed to Counsel for the Initial Purchasers, of each of Linklaters and (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for ii) if the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory Offering Memorandum shall be supplemented after being furnished to the Initial Purchasers for use in their reasonable discretionoffering the Bonds, with changes therein to reflect such supplementation.
(bc) On At the Closing Date, the Initial Purchasers shall have received from Counsel for the Initial Purchasers 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 the Closing Date and addressed Offering Memorandum prior to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretionClosing Date.
(cd) On At the Closing Date, the Initial Purchasers shall have received from Deloitte & Touche LLP, the opinionCompany's independent certified public accountants (the "Accountants"), in form and substance satisfactory to the Initial Purchasers, a letter dated as of the Closing Date and addressed to the Initial PurchasersPurchasers to the effect that (i) they are independent certified public accountants with respect to the 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 Memorandum comply as to form in all material respects with the applicable accounting requirements of Milbankthe 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, TweedInterim Financial Information, Xxxxxx & XxXxxxon the latest unaudited financial statements, counsel if any, incorporated by reference in the Offering Memorandum, 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, 2001 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 such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the 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 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 Memorandum, except in all instances for changes or decreases which the Offering Memorandum discloses have occurred 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 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 Company (x) set forth in the Offering Memorandum, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as specified 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 respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinionresults obtained from the application of specified readings, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates inquiries and other documents appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and information as it may reasonably request found them to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, be in form and substance satisfactory to counsel for the Initial Purchasersagreement.
(e) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of At the Closing Date; the statements of any Authorized Person 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; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Company, to the effect that:that (i) the representations and warranties of the Company contained herein are true and correct, (ii) the Company has performed and complied with all agreements and conditions in this Purchase Agreement to be performed or complied with by the Company at or prior to the Closing Date and (iii) since the most recent date as of which information is given in the Offering Memorandum, as it may then be amended or supplemented, there has not been any material adverse change in the business, property or financial condition of the Company and there has not been any material transaction entered into by the Company, other than transactions in the ordinary course of business, in each case other than as referred to in, or contemplated by, the Offering Memorandum, as it may then be amended or supplemented.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be Purchaser hereunder are subject to the satisfaction accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained in Section 1 hereof or waiver in certificates of any officer of the Company or the Subsidiary delivered pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, and to each of the following conditions on or prior to the Closing Dateadditional terms and conditions:
(a) On the Closing Initial Purchaser shall not have discovered and disclosed to the Company prior to or on such Delivery Date that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the reasonable opinion of counsel to the Initial Purchaser, is material or omits to state any fact which is material and necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(b) on each Delivery Date, Jxxxx Day, shall have furnished to the Initial Purchasers shall have received opinionsPurchaser their written opinion, dated as of counsel to the Closing Date and Company, addressed to the Initial PurchasersPurchaser and dated such Delivery Date, substantially in the form of Annex 1 attached hereto;
(c) on each Delivery Date, Pxxxxxx Coie, LLP, special patent counsel to the Company, shall have furnished to the Initial Purchaser their written opinion, addressed to the Initial Purchaser and dated such Delivery Date, substantially in the form of Linklaters Annex 2 attached hereto;
(US d) on each Delivery Date, Hxxxx, Pxxxxx & MxXxxxxx, P.C. , U.S. Food and UK law); De Brauw Blackstone Westbroek N.V.; Drug Administration regulatory counsel to the Company, shall have furnished to the Initial Purchaser their written opinion, addressed to the Initial Purchaser and dated such Delivery Date, substantially in the form of Annex 3 attached hereto;
(Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg e) Shearman & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); StroeterSterling LLP, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for shall have furnished to the Issuer and/or the GuarantorsInitial Purchaser their written opinion, as counsel to the case may beInitial Purchaser, in each caseaddressed to the Initial Purchaser and dated such Delivery Date, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.Purchaser;
(bf) On at the Closing Delivery Date, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Disclosure Package or the Final Offering Memorandum (exclusive of any amendments or supplements thereto subsequent to the Applicable Time), any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and the Subsidiary considered as one enterprise, whether or not arising in the ordinary course of business, and the Initial Purchasers Purchaser shall have received an opiniona certificate of the Chief Executive Officer of the Company and of the Chief Financial Officer of the Company, dated as of the Closing Date Delivery Date, to the effect that (i) there has been no such material adverse change, (ii) the representations and addressed warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of the Delivery Date, and (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Delivery Date;
(g) at the Delivery Date, the Initial Purchaser shall have received a certificate of the Chief Financial Officer of the Company, dated as of the Delivery Date, reasonably satisfactory in form and substance to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal Purchaser and counsel for the IssuersInitial Purchaser;
(h) at the time of the execution of this Agreement, the Initial Purchaser shall have received from Ernst & Young LLP a letter dated such date, in form and substance satisfactory to the Initial Purchasers Purchaser, together with signed or reproduced copies of such letter for the Initial Purchaser containing statements and information of the type ordinarily included in their reasonable discretion.accountants’ “comfort letters” to Initial Purchaser with respect to the financial statements and certain financial information contained in the Offering Memorandum;
(ci) On at the Closing Delivery Date, the Initial Purchasers Purchaser shall have received the opinion, in form and substance satisfactory to the Initial Purchasersfrom Ernst & Young LLP a letter, dated as of the Closing Date Delivery Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Delivery Date;
(j) the Indenture shall have been duly executed and addressed delivered by the Company and the Trustee and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee;
(k) the Company and the Initial Purchaser shall have executed and delivered the Registration Rights Agreement (in form and substance reasonably satisfactory to the Initial PurchasersPurchaser) and the Registration Rights Agreement shall be in full force and effect;
(l) at the First Delivery Date, the Notes shall have been approved for designation as a PORTAL security;
(m) subsequent to the date of Milbankthis Agreement, Tweedthere shall not have occurred a downgrading in the rating assigned to the Notes, Xxxxxx & XxXxxxif any, by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes;
(n) on or prior to the date of this Agreement, the Initial Purchaser shall have received an agreement substantially in the form of Exhibit A attached hereto signed by the persons listed in Schedule III attached hereto; and
(o) at the Delivery Date, counsel for the Initial Purchasers, Purchaser shall have been furnished with respect to certain legal matters relating to this Agreement such documents and such other related matters opinions as the Initial Purchasers they may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request require for the purpose of enabling them to pass upon such matters.
(d) The Initial Purchasers the issuance and sale of the Notes as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Notes as herein contemplated shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, be reasonably satisfactory in form and substance satisfactory to the Initial Purchaser and counsel for the Initial Purchasers.
(e) The representations and warranties of the Issuers contained Purchaser. If any condition specified in this Agreement Section 5 shall be true and correct on not have been fulfilled when and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part required to be performed or satisfied hereunder fulfilled, this Agreement may be terminated by the Initial Purchaser by notice to the Company at any time at or prior to the Closing applicable Delivery Date; and, and such termination shall be without liability of any party to any other party except as described provided in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof)Section 4 and except that Sections 1, subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)7, there 8 and 9 shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of survive any such occurrence, except any such interference, loss or damage which would not, whether individually or termination and remain in the aggregate, have or be reasonably likely to have a Material Adverse Effectfull force and effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:
Appears in 1 contract
Samples: Purchase Agreement (Dendreon Corp)
Conditions of the Initial Purchasers’ Obligations. The --------------------------------------------------- obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers The Memorandum shall have received opinions, dated as of the Closing Date be in form and addressed substance reasonably satisfactory to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion. The Company shall have complied with Section 5(a) hereof.
(b) On the Closing Date, the Initial Purchasers shall have received an the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx XxxxxFulbright & Xxxxxxxx L.L.P., in-house legal counsel for the IssuersCompany, in the form attached hereto as Exhibit A, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers in their reasonable discretionPurchasers.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxxxxx X. Xxxxx, Esq., Senior Vice President, Legal and Strategic Affairs, of the Company, in the form attached hereto as Exhibit B, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(d) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(de) The Initial Purchasers shall have received from the Independent Accountants PricewaterhouseCoopers LLP a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ef) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed in all material respects all covenants and agreements and satisfied in all material respects all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)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 be reasonably likely to have a Material Adverse Effect.
(fg) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gh) Subsequent to the date of the Memorandummost recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hi) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company contained in this Agreement are true and correct in all material 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 or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the 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 be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(j) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(k) On the Closing Date, the Initial Purchasers shall have received the Escrow Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(l) On the Closing Date, the Company shall have irrevocably called for redemption of all of its 8 7/8% Senior Subordinated Notes due 2008 and shall provide evidence thereof reasonably satisfactory to the Initial Purchasers. On or before the Closing Date, the Initial Purchasers and 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 theretofore reasonably requested from the Company. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Notes and the Additional Closing Date, if any, for the Optional Notes. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be Notes are subject to the satisfaction absence from any certificates, opinions, written statements or waiver letters furnished to the Initial Purchaser pursuant to this Section 7 of any material misstatement and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchaser:
(ai) On the Closing Date, the The Initial Purchasers Purchaser shall have received opinions, dated as an opinion of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On Purchaser and counsel to the Initial Purchaser, dated the Closing Date, of Xxxxx Day, counsel to the Company, substantially in the form of Exhibit B hereto.
(ii) The Initial Purchasers Purchaser shall have received an opinion, dated as the opinions of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On Purchaser and counsel to the Initial Purchaser, each dated the Closing Date, of Xxxxxxx Xxxxxx, General Counsel of the Company, substantially in the form of Exhibit C hereto, and Xxxxxxx Xxxxxxx Xxxxxxxx, PC, Indiana counsel to the Company, substantially in the form of Exhibit D hereto.
(iii) The Initial Purchasers Purchaser shall have received an opinion and a letter, each dated the opinionClosing Date, in form and substance satisfactory of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Initial PurchasersPurchaser, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(div) The Initial Purchasers Purchaser shall have received from PricewaterhouseCoopers LLP, independent auditors for the Independent Accountants Company, a comfort “comfort” letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser.
(ev) The Prior to the date hereof, the Initial Purchaser shall have received from each of the officers and directors listed on Schedule 1 hereto an executed Lock-Up Agreement in substantially in the form of Exhibit E hereto.
(vi) All of the representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers Company shall have complied with or performed in all covenants and material respects all agreements or obligations and satisfied all conditions in each case on their its part to be complied with, performed or satisfied hereunder at or prior to the Closing Date.
(vii) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued relating thereto; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or threatened against the Company or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, or the other Offering Documents.
(viii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and its Subsidiaries, taken as a whole, not contemplated by the Offering Memorandum (which for all purposes of this clause (i) and clause (ii) below shall be exclusive of any amendment or supplement thereto, including by the filing of any document under the Exchange Act, after the date hereof which the Initial Purchaser has reasonably disapproved) that is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Offering Memorandum or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors, that makes any statement made in the Offering Memorandum untrue in any material respect or that, in the opinion of the Company and its counsel or the Initial Purchaser and its counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading in the light of the circumstances under which they were made.
(ix) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date, all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior to the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Notes pursuant to this Agreement or the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchaser’s activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (i) any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company and its Subsidiaries, taken as a whole, not contemplated by the Offering Memorandum (which for all purposes of this clause (i) and clause (ii) below shall be exclusive of any amendment or supplement thereto, including by the filing of any document under the Exchange Act, after the date hereof which the Initial Purchaser has reasonably disapproved) or (ii) any event or development relating to or involving the Company or any of the Subsidiaries, or any of their respective officers or directors, that makes any statement of a material fact made in the Offering Memorandum untrue or that requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements made therein not misleading.
d. At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Documents, there exists no Default or Event of Default (as each such term is defined in the Indenture).
(x) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or developmentwaivers of any provision of this Agreement since the date of this Agreement (or, and no information shall have become known, that, individually or in the aggregatecase of the Indenture, has the Notes or would be reasonably likely to have a Material Adverse Effectthe Registration Rights Agreement, the date thereof).
(fxi) The sale All proceedings taken in connection with the issuance of the Securities hereunder Notes and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(gxii) Subsequent to The Notes shall have been approved for trading on The PORTAL Market.
(xiii) Since the date of the Memorandumthis Agreement, the conduct of the business and operations of each of the Issuers there shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or any announcement by any court or governmental action“nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, order or decree, and, except as otherwise stated therein, the properties of each that (A) it is downgrading its rating assigned to any debt securities of the Issuers Company or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, with negative implications or direction not determined.
(xiv) Since the date of this Agreement, there shall not have sustained occurred any loss or damage event described in clauses (whether or not insuredi) as a result through (v) of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse EffectSection 12.
(hxv) The Initial Purchasers shall have received a certificate of the Issuers, dated At the Closing Date, signed on behalf of each Issuer the Company and the Trustee shall have entered into the Indenture and the Initial Purchaser shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by two Authorized Persons the Company and duly authenticated by the Trustee.
(except xvi) The Company shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the case of any Issuer organized under Initial Purchaser and counsel to the laws of Initial Purchaser. The Company shall furnish to the Netherlands, in which case, Initial Purchaser such certificate shall be signed by one Authorized Person who shall be the managing director conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (CTS Corp)
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the The Initial Purchasers shall have received the opinion, opinion in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial PurchasersDate, of MilbankWeil, Tweed, Xxxxxx Gotshal & XxXxxxMangxx XXX, counsel for the Initial PurchasersIssuers, with respect to certain legal matters relating to this Agreement and such other related matters as substantially in the Initial Purchasers may reasonably requireform of Exhibit B hereto. In rendering such opinion, MilbankWeil, Tweed, Xxxxxx Gotshal & XxXxxx Mangxx XXX shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(db) The Initial Purchasers shall have received from the Independent Accountants a comfort letter an opinion or letters opinions, dated the date hereof and the Closing Date, of Lathxx & Xatkxxx, xxunsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and certain FCC regulatory matters, and such other related matters as the Initial Purchasers may require. In rendering such opinion or opinions, Lathxx & Xatkxxx xxxll have received and may rely upon such certificates and other documents and information as they may reasonably request to pass upon such matters. In addition, in rendering their opinion or opinions, Lathxx & Xatkxxx xxx state that their opinion or opinions is limited to matters of New York, California, Delaware corporate and federal law.
(c) The Initial Purchasers shall have received customary comfort letters from PricewaterhouseCoopers, LLP and KPMG Peat Marwick LLP, dated September 30, 1998 and shall have received a customary comfort letter dated September 29, 1998, and a customary bring-down comfort letter from Arthxx Xxxexxxx XXX, in each case addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers.
(ed) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and in all material respects as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers shall have performed complied in all material respects with all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), and subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)the Offering Circular, there shall have been no event or development, and no information shall have become known, that, individually or material adverse change in the aggregatebusiness, has condition (financial or would be reasonably likely to have other), results of operations or prospects of the Issuers, taken as a Material Adverse Effectwhole, except as set forth in, or contemplated by, the Offering Circular.
(fe) The issuance and sale of the Securities by the Issuers hereunder shall not be enjoined (temporarily or permanently) on the Closing DateDate and no restraining order or other injunctive order shall have been issued or any action, suit or proceeding shall have been commenced with respect to this Agreement or any other transactions hereby, before any court or governmental authority (including, without limitation, the FCC).
(f) Subsequent to the date as of which information is given in the Offering Circular, except as described in or as contemplated by the Offering Circular, none of the Issuers shall have incurred any liabilities or obligations, direct or contingent (other than in the ordinary course of business) that are material to the Issuers, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or other), results of operations or prospects of the Issuers, taken as a whole, and, other than as contemplated by the Offering Circular, there shall not have been any change in the capital stock or long-term indebtedness of any Issuer that is material to the business, condition (financial or other), results of operations or prospects of the Issuers, taken as a whole.
(g) Subsequent to the date as of which information is given in the MemorandumOffering Circular, the conduct of the business and operations of each the Company or any of the Issuers shall its subsidiaries has not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each the Company or any of the Issuers shall its subsidiaries have not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to not have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Vice President and Assistant Secretary of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer)Company, to the effect that:
(i) The representations and warranties of the Issuers in this Agreement are true and correct in all material respects as if made on and as of the Closing Date (other than to the extent any such representation or warranty is expressly made to a certain date), and each Issuer has performed in all material respects all covenants and agreements and satisfied, in all material respects, all conditions on their part to be performed or satisfied hereunder, to the extent a party thereto, at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the Offering Circular, except as described in the Offering Circular, no event or events have occurred, nor has any information become known that, individually or in the aggregate, would have a Material Adverse Effect;
(iii) The issuance and sale of the Securities by the Issuers hereunder has not been enjoined (temporarily or permanently) by any court or governmental agency or body (including without limitation, the FCC); and
(iv) Subsequent to the respective dates as of which information is given in the Offering Circular, except in each case as described in or as contemplated by the Offering Circular, none of the Issuers has incurred any liabilities or obligations, direct or contingent, that are material to the Issuers, taken as a whole, or entered into any transactions that, individually or in the aggregate, would have a Material Adverse Effect; and there has been no change in the capital stock or long-term indebtedness of the Issuers that individually or in the aggregate would have a Material Adverse Effect.
(i) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and such agreement shall be in full force and effect on the Closing Date.
(j) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further documents, opinions, certificates and schedules or instruments relating to the business, corporate, legal and financial affairs of the Issuers as they shall have heretofore reasonably requested from the Issuers. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Notes. The obligation obligations of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be Notes are subject to the satisfaction absence from any certificates, opinions, written statements or waiver letters furnished to the Initial Purchasers pursuant to this Section 7 of any misstatement or omission and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchasers:
(aA) On the Closing Date, the The Initial Purchasers shall have received opinionsan opinion, in substantially the form of Exhibit A attached hereto, dated as of the Closing Date and addressed Date, of Xxxxxx Godward Kronish LLP, counsel to the Company.
(B) The Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each casePurchasers shall have received a comfort letter, in form and substance satisfactory to the Initial Purchasers Purchasers, in their reasonable sole discretion, dated December 12, 2006, of BDO Xxxxxxx, LLP, registered independent auditor of the Company.
(bC) On With respect to the Closing Datecomfort letter of BDO Xxxxxxx, LLP referred to in the preceding subsection, the Initial Purchasers shall have received an opiniona “bring-down” letter of BDO Xxxxxxx, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the IssuersLLP, in form and substance satisfactory to the Initial Purchasers Purchasers, in their reasonable sole discretion, dated the Closing Date.
(cD) On The Initial Purchasers shall have received a comfort letter, in form and substance satisfactory to the Closing DateInitial Purchasers, in their sole discretion, dated December 11, 2006, of Ernst & Young LLP, registered independent auditor of Jazz.
(E) With respect to the comfort letter of Ernst & Young LLP referred to in the preceding subsection, the Initial Purchasers shall have received a “bring-down” letter of Ernst & Young LLP, in form and substance satisfactory to the Initial Purchasers, in their sole discretion, dated the Closing Date.
(F) The Initial Purchasers shall have received an opinion, in form and substance satisfactory to the Initial Purchasers, in their sole discretion, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, 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, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory of Xxxxxxx XxXxxxxxx LLP, counsel to counsel for the Initial Purchasers.
(eG) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on (in the case of representations and warranties qualified as to materiality) or true and correct in all material respects (in the case of the date hereof all other representations and on and as of the Closing Date as if made warranties) on and as of the Closing Date; , and the statements of any Authorized Person 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; the Issuers Company shall have performed complied in all covenants and material respects with all covenants, agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described .
(H) The representations and warranties made in the Merger Agreement by each of the Company and Jazz shall be true and complete (in the case of representations and warranties qualified as to materiality) or true and correct in all material respects (in the case of all other representations and warranties) on and as of the Closing Date (except for any representation or warranty that speaks as of a specific date, which representation or warranty shall be true and complete in all material respects as of such date).
(I) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by this Agreement or any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance or the trading of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
(exclusive of any amendment or supplement thereto after J) Subsequent to the date hereof), subsequent to of this Agreement and since the date of the most recent financial statements in such Memorandum (whether or not audited)the Offering Memorandum, there shall not have been no event occurred any change, or developmentany development involving a prospective change in, and no information shall have become knownor affecting the business, thatcondition (financial or other), individually properties or results of operations of, the Company or the Subsidiary or Jazz not disclosed in the aggregateOffering Memorandum that is, has in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or would be reasonably likely inadvisable to have a Material Adverse Effectproceed with the Offering on the terms and in the manner contemplated by the Offering Memorandum.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(hK) The Initial Purchasers shall have received a certificate of the Issuerscertificates, dated the Closing DateDate and signed by the Chairman and Chief Executive Officer and the President, signed on behalf Chief Operating Officer, Chief Financial Officer and Secretary of each Issuer by two Authorized Persons the Company, to the effect that to the best of their knowledge:
(except i) All of the representations and warranties of the Company set forth in this Agreement are true and correct (in the case of any Issuer organized under representations and warranties qualified as to materiality) or true and correct in all material respects (in the laws case of all other representations and warranties) on and as of the NetherlandsClosing Date, and all covenants agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with, in all material respects.
(ii) The representations and warranties made by the Company and Jazz in the Merger Agreement are true and correct (in the case of representations and warranties qualified as to materiality) or true and correct in all material respects (in the case of all other representations and warranties) on and as of the Closing Date (except for any such representation or warranty that speaks as of a specific date, which caserepresentation or warranty is true and complete in all material respects as of such date).
(iii) No event has occurred and is continuing, as a result of which the Offering Memorandum including all exhibits and attachments thereto would contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances existing at the time it is delivered to the Initial Purchasers, not misleading.
(iv) The issuance and sale of the Notes pursuant to this Agreement and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such certificate officers’ knowledge, threatened against the Company relating to the issuance or the trading of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
(v) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Offering Memorandum, there has not occurred (1) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties or results of operations of the Company or the Subsidiary, not contemplated by the Offering Memorandum, except for any change or prospective change that would not reasonably be expected to result in a Material Adverse Effect upon the Company, (2) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties or results of operations of Jazz, not contemplated by the Offering Memorandum, except for any change or prospective change that would not reasonably be expected to result in a Material Adverse Effect upon Jazz, or (3) any event or development relating to or involving the Company or the Subsidiary or any of their respective officers or directors that makes any statement made in the Offering Memorandum untrue in any material respect or that requires the making of any addition to or change in the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein not misleading.
(vi) At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Documents there shall exist no Default or Event of Default (as defined in the Indenture).
(L) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be signed reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by one Authorized Person who all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the managing director date of this Agreement.
(M) The Initial Purchasers shall have confirmed sales to the Subsequent Purchasers agreeing to fund a total of $145,000,000, none of the Subsequent Purchasers shall have actually made or threatened to make any amendments, alterations, modifications, withdrawals, waivers or breaches with respect to its commitment to purchase Notes, and the Initial Purchasers shall have no reasonable good faith belief that such commitments or purchases will not be funded.
(N) All proceedings taken in connection with the issuance of the Notes and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers. The Initial Purchasers and counsel to the Initial Purchasers shall have received copies of such Issuer)papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(O) The Notes shall be eligible for clearance on DTC.
(P) At the Closing Date, the Company and the Trustee shall have entered into the Indenture, in form and substance satisfactory to the effect that:Initial Purchasers, in their sole discretion, and the Initial Purchasers shall have received counterparts, dated the Closing Date and executed by each of the parties thereto and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(Q) At the Closing Date, each of the Registration Rights Agreement, the Escrow Agreement, the Security Agreement and the Control Agreement shall have been executed and delivered by all parties thereto.
(R) Except as disclosed in the Offering Memorandum, there are no pending or threatened legal or governmental proceedings to which the Company or the Subsidiary or Jazz is a party or of which any property of the Company or the Subsidiary is the subject, which, the Initial Purchasers believe, in their sole discretion, if determined adversely to the Company or the Subsidiary, would individually or in the aggregate have a Material Adverse Effect on the financial position or results of operations of the Company and the Subsidiary taken as a whole; and
(S) The Company shall have received Limited Waivers in the form of Exhibit B hereto from the parties named therein. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all respects to the Initial Purchasers and counsel to the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 7, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligation obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities shall, in their sole discretion, be Notes are subject to the satisfaction absence from any certificates opinions, written statements or waiver letters furnished to the Initial Purchaser pursuant to this Section 7 of any misstatement or omission and to the following additional conditions on or prior to unless waived in writing by the Closing DateInitial Purchaser:
(ai) On The Initial Purchaser shall have received an opinion in form and substance reasonably satisfactory to the Initial Purchaser, dated the Closing Date, of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Company covering the matters set forth on Exhibit B hereto.
(ii) The Initial Purchasers Purchaser shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, an opinion in form and substance reasonably satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On Purchaser, dated the Closing Date, of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., intellectual property counsel to the Company, covering the matters set forth on Exhibit C hereto.
(iii) The Initial Purchasers Purchaser shall have received an opinionopinion of Xxxxxxxx & Xxxxxxxx LLP, dated as of the Closing Date and addressed counsel to the Initial PurchasersPurchaser, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On dated the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Initial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(div) The Initial Purchasers Purchaser shall have received from Deloitte & Touche LLP, independent public accountants for the Independent Accountants a comfort letter or letters dated Company, on each of the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser and Xxxxxxxx & Xxxxxxxx LLP, counsel to the Initial Purchaser, letters dated the date hereof and the Closing Date confirming that is an independent public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder 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 or incorporated by reference in the Offering Memorandum.
(ev) The Initial Purchaser shall have received from each of the officers and directors listed on Schedule 2 hereto an executed Lock-Up Agreement in substantially the form of Exhibit D hereto.
(vi) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person 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; the Issuers Company shall have performed complied in all covenants and material respects with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vii) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; andand there shall not have been any legal action, except as described statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchaser relating to the issuance of the Securities or the Initial Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum, or the other Offering Documents.
(viii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties, or results of operations of the Company or the Subsidiary, not disclosed in the Offering Memorandum that is, in the judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Offering Memorandum, or (ii) any event or development relating to or involving the Company or the Subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchaser and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(ix) The Initial Purchaser shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Notes pursuant to this Agreement and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchaser’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in such the Offering Memorandum (whether exclusive of any amendment or not auditedsupplement thereto after the date hereof), there has not occurred (i) any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, condition (financial or other), properties, or results of operations of the Company or the Subsidiary, not contemplated by the Offering Memorandum, or (ii) any event or development relating to or involving the Company or the Subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that requires the making of any addition to or change in the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
d. At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Memorandum, there exists no Default or Event of Default (as defined in the Indenture).
(x) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchaser) and shall be in full force and effect, and there shall have been no event material amendments, alterations, modifications or development, and no information shall have become known, that, individually or in waivers of any provision thereof since the aggregate, has or would be reasonably likely to have a Material Adverse Effectdate of this Agreement.
(fxi) The sale All proceedings taken in connection with the issuance of the Securities hereunder Notes and the transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall not be enjoined (temporarily or permanently) on reasonably satisfactory to the Closing DateInitial Purchaser and counsel to the Initial Purchaser.
(gxii) Subsequent to The Notes shall have been approved for trading on PORTAL.
(xiii) Since the date of the Memorandumthis Agreement, the conduct of the business and operations of each of the Issuers there shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or any announcement by any court or governmental action“nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, order or decree, and, except as otherwise stated therein, the properties of each that (A) it is downgrading its rating assigned to any debt securities of the Issuers shall Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effectdetermined.
(hxiv) The Initial Purchasers shall have received a certificate of the Issuers, dated On or before the Closing Date, signed on behalf of each Issuer the Initial Purchaser shall have received the Registration Rights Agreement executed by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, Company and such certificate agreement shall be signed in full force and effect.
(xv) The Company shall have furnished or caused to be furnished to the Initial Purchaser such further certificates and documents as the Initial Purchaser shall have reasonably requested.
(xvi) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchaser shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by one Authorized Person who the Company and duly authenticated by the Trustee. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchaser and counsel to the Initial Purchaser. The Company shall be furnish to the managing director Initial Purchaser such conformed copies of such Issuer)opinions, to certificates, letters, schedules, documents and instruments in such quantities as the effect that:Initial Purchaser shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Curagen Corp)
Conditions of the Initial Purchasers’ Obligations. The --------------------------------------------------- obligation of the Initial Purchasers to purchase and pay for the Securities Notes shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers The Memorandum shall have received opinions, dated as of the Closing Date be in form and addressed substance reasonably satisfactory to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion. The Company shall have complied with Section 5(a) hereof.
(b) On the Closing Date, the Initial Purchasers shall have received an the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx XxxxxFulbright & Xxxxxxxx L.L.P., in-house legal counsel for the IssuersCompany, in the form attached hereto as Exhibit A, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers in their reasonable discretionPurchasers.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxxxxx X. Xxxxx, Esq., Senior Vice President, Legal and Strategic Affairs, of the Company, in the form attached hereto as Exhibit B, and otherwise in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
(d) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxxXxxxxxx, 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, Milbank, Tweed, Xxxxxx Xxxxxx & XxXxxx Xxxxxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(de) The Initial Purchasers shall have received from the Independent Accountants PricewaterhouseCoopers LLP a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(ef) The representations and warranties of the Issuers Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person the Company's officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date; the Issuers Company shall have performed in all material respects all covenants and agreements and satisfied in all material respects all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited)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 be reasonably likely to have a Material Adverse Effect.
(fg) The sale of the Securities Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(gh) Subsequent to the date of the Memorandummost recent financial statements in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), the conduct none of the business and operations of each Company or any of the Issuers Subsidiaries shall not have been interfered sustained any loss or interference with by strike, labor dispute, slowdown, work stoppage, respect to its business or properties from fire, flood, hurricane, accident or other calamity (calamity, whether or not insured) covered by insurance, or by from any court strike, labor dispute, slow down or work stoppage or from any legal or governmental actionproceeding, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any which loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have has or would be reasonably likely to have a Material Adverse Effect.
(hi) The Initial Purchasers shall have received a certificate of the IssuersCompany, dated the Closing Date, signed on behalf of each Issuer the Company by two Authorized Persons (except in the case of any Issuer organized under the laws its Chairman of the NetherlandsBoard, in which case, such certificate shall be signed by one Authorized Person who shall be President or any Senior Vice President and the managing director of such Issuer)Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company contained in this Agreement are true and correct in all material 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 or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements in the 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 be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(j) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(k) On the Closing Date, the Initial Purchasers shall have received the Escrow Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date.
(l) On the Closing Date, the Company shall have irrevocably called for redemption of all of its 9 3/4% Senior Subordinated Debentures due 2007 and shall provide evidence thereof reasonably satisfactory to the Initial Purchasers. On or before the Closing Date, the Initial Purchasers and 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 theretofore reasonably requested from the Company. All such documents, opinions, certificates, letters, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
