Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser to purchase the Purchased Notes on the Closing Date will be subject to the accuracy as of the date hereof and as of the Closing Date, in all material respects, of the representations and warranties of the Issuer herein, to the performance, in all material respects, by the Issuer of its obligations hereunder and to the following additional conditions precedent: (a) The Notes shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the documents required to be delivered pursuant to the Indenture in respect of the Collateral Obligations shall have been delivered to the Custodian pursuant to and as required by the Transaction Documents. (b) The Initial Purchaser shall have received a certificate, dated as of the Closing Date, of a manager of the Collateral Manager to the effect that such officer has carefully examined the Final Memorandum and that, to the best of such officer’s knowledge, nothing has come to the attention of such officer that would lead such officer to believe that the "CM Offering Circular Information" (as defined in the Final Memorandum), as of the date of the Final Memorandum and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) The Class A-1 Notes shall have been rated "AAA(sf)" by S&P, the Class A-2 Notes shall have been rated "AAA(sf)" by S&P, the Class B Notes shall have been rated no less than "AA(sf)" by S&P and the Class C Notes shall have been rated no less than "A(sf)" by S&P, such ratings shall not have been rescinded, and no public announcement shall have been made by S&P that any ratings of the Offered Notes have been placed under review. (d) The Initial Purchaser shall have received an opinion, dated the Closing Date, of Nxxxx Pxxxxxx LLP, counsel to the Trustee, in form and substance satisfactory to the Initial Purchaser. (e) The Initial Purchaser shall have received legal opinions or letters of Dechert LLP, counsel to the Issuer and the Collateral Manager, with respect to certain corporate matters with respect to the Issuer and the Collateral Manager and certain federal tax, securities law and investment company matters, in form and substance satisfactory to the Initial Purchaser. (f) [Reserved]. (g) The Initial Purchaser shall have received opinions of Cxxxx Hxxx PLC, Delaware counsel to the Issuer, with respect to certain limited liability company matters with respect to the Issuer in form and substance satisfactory to the Initial Purchaser. (h) The Initial Purchaser shall have received from the Trustee a certificate signed by one or more duly authorized officers of the Trustee, dated the Closing Date, in customary form. (i) The Purchaser shall have purchased or otherwise acquired the Subordinated Notes in accordance with the terms of the Subordinated Note Purchase Agreements. (j) The Indenture, the Collateral Management Agreement and all other documents incident hereto and to the other Transaction Documents shall have been executed and delivered by the parties thereto in form and substance reasonably satisfactory to the Initial Purchaser and its counsel; an executed version of each Transaction Document shall have been delivered to the Initial Purchaser; and each Transaction Document shall be in full force and effect. (k) The Closing Date occurs on or prior to August 26, 2020. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchaser, unless in any case waived by the Initial Purchaser in its sole discretion, this Agreement and all of the Initial Purchaser’s obligations hereunder may be canceled by the Initial Purchaser at or prior to delivery of and payment for the Purchased Notes. Notice of such cancellation shall be given to the Collateral Manager in writing, or by telephone or facsimile confirmed in writing.
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Conditions of the Initial Purchasers’ Obligations. The obligation several obligations of the Initial Purchaser to purchase and pay for the Purchased Senior Discount Notes on the Closing Date will as provided herein, shall be subject to the accuracy satisfaction of each of the following conditions:
(a) All the representations and warranties of NEHC contained in this Agreement shall be true and correct on the Closing Date, with the same force and effect as if made on and as of the date hereof and the Closing Date, respectively. NEHC shall have performed or complied with its obligations and agreements and satisfied the conditions to be performed, complied with or satisfied by it on or prior to the Closing Date.
(1) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchaser not later than 9:00 a.m., New York City time, on the day following the date of this Agreement, or at such later date and time as to which the Initial Purchaser may approve;
(2) no action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency that would, as of the Closing Date, in all material respects, prevent the issuance of the representations and warranties of the Issuer herein, to the performance, in all material respects, by the Issuer of its obligations hereunder and to the following additional conditions precedent:Senior Discount Notes;
(a3) The Notes no injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been duly authorized, executed, authenticated, delivered and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the documents required to be delivered pursuant to the Indenture in respect of the Collateral Obligations shall have been delivered to the Custodian pursuant to and as required by the Transaction Documents.
(b) The Initial Purchaser shall have received a certificate, dated issued as of the Closing Date, of a manager of the Collateral Manager to the effect that such officer has carefully examined the Final Memorandum and thatDate or, to the best knowledge of such officer’s knowledgeNEHC, nothing has come to threatened against, NEHC which would prevent the attention of such officer that would lead such officer to believe that the "CM Offering Circular Information" (as defined in the Final Memorandum), as issuance of the date Senior Discount Notes; and
(4) no stop order preventing the use of the Final Memorandum and as Offering Documents, or any amendment or supplement thereto, or suspending the qualification or exemption from qualification of the Closing DateSenior Discount Notes for sale in any jurisdiction designated by the Initial Purchaser pursuant to Section 5(e) hereof shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending threatened or, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleadingNEHC's knowledge contemplated.
(c) The Class A-1 Notes shall have been rated "AAA(sf)" by S&P(1) (i) Since the date of the latest balance sheet in the Offering Memorandum, the Class A-2 Notes shall have been rated "AAA(sf)" by S&P, the Class B Notes shall have been rated no less than "AA(sf)" by S&P and the Class C Notes shall have been rated no less than "A(sf)" by S&P, such ratings there shall not have been rescindedany material adverse change, or any development involving a prospective material adverse change, in the assets, properties, business, results of operations, condition (financial or otherwise) or prospects, whether or not arising in the ordinary course of business, of NEHC and no public announcement shall have been made by S&P that any ratings its subsidiaries, taken as a whole, (ii) since the date of the Offered Notes have been placed under review.
(d) The Initial Purchaser shall have received an opinionlatest balance sheet included in the Offering Memorandum, dated the Closing Date, of Nxxxx Pxxxxxx LLP, counsel to the Trustee, in form and substance satisfactory to the Initial Purchaser.
(e) The Initial Purchaser shall have received legal opinions or letters of Dechert LLP, counsel to the Issuer and the Collateral Manager, with respect to certain corporate matters with respect to the Issuer and the Collateral Manager and certain federal tax, securities law and investment company matters, in form and substance satisfactory to the Initial Purchaser.
(f) [Reserved].
(g) The Initial Purchaser shall have received opinions of Cxxxx Hxxx PLC, Delaware counsel to the Issuer, with respect to certain limited liability company matters with respect to the Issuer in form and substance satisfactory to the Initial Purchaser.
(h) The Initial Purchaser shall have received from the Trustee a certificate signed by one or more duly authorized officers of the Trustee, dated the Closing Date, in customary form.
(i) The Purchaser shall have purchased or otherwise acquired the Subordinated Notes in accordance with the terms of the Subordinated Note Purchase Agreements.
(j) The Indenture, the Collateral Management Agreement and all other documents incident hereto and to the other Transaction Documents shall have been executed and delivered by the parties thereto in form and substance reasonably satisfactory to the Initial Purchaser and its counsel; an executed version of each Transaction Document shall have been delivered to the Initial Purchaser; and each Transaction Document shall be in full force and effect.
(k) The Closing Date occurs on or prior to August 26, 2020. If any of the conditions specified in this Section 7 there shall not have been fulfilled in all any material respects when and as provided in this Agreementchange, or if any development that is reasonably likely to result in a material change, in the capital stock or in the long-term debt, or material increase in short-term debt, of NEHC and its subsidiaries, taken as a whole, from that set forth in the Offering Memorandum and (iii) except as set forth in the Offering Memorandum, neither NEUC nor any of the opinions and certificates mentioned above its subsidiaries shall not be in all have any liability or obligation, direct or contingent, which is material respects reasonably satisfactory in form and substance to the Initial Purchaser, unless in any case waived by the Initial Purchaser in its sole discretion, this Agreement and all of the Initial Purchaser’s obligations hereunder may be canceled by the Initial Purchaser at or prior to delivery of and payment for the Purchased Notes. Notice of such cancellation shall be given to the Collateral Manager in writing, or by telephone or facsimile confirmed in writing.NEHC;
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Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchaser to purchase the Purchased Notes on the Closing Date will be subject to the accuracy as of the date hereof and as of the Closing Dateaccuracy, in all material respects, of the representations and warranties of the Issuer Trust herein, to the performance, in all material respects, by the Issuer Trust of its obligations hereunder and to the following additional conditions precedent:
(a) The Purchased Notes shall have been duly authorized, executed, authenticated, delivered authenticated and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the documents required to be delivered pursuant to the Indenture in respect of the Collateral Obligations Commercial Loans shall have been delivered to the Custodian Trustee pursuant to the Sale and as required by the Transaction DocumentsServicing Agreement.
(b) The Initial Purchaser shall have received a certificateClass A-1A Notes, dated as of the Closing DateClass A-1A VFN Notes, of a manager of the Collateral Manager to Class A-1B Notes, the effect that such officer has carefully examined Class A-2A Notes, and the Final Memorandum and that, to the best of such officer’s knowledge, nothing has come to the attention of such officer that would lead such officer to believe that the "CM Offering Circular Information" (as defined in the Final Memorandum), as of the date of the Final Memorandum and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) The Class A-1 A-2B Notes shall each have been rated "AAA(sf)" no less than “Aaa” by S&P, the Class A-2 Notes shall have been rated "AAA(sf)" Mxxxx’x and “AAA” by S&P, the Class B Notes shall have been rated no less than "AA(sf)" “Aa2” by S&P Mxxxx’x and “AA” by S&P, the Class C Notes shall have been rated no less than "A(sf)" “A2” by Mxxxx’x and “A” by S&P, and the Class D Notes shall have been rated no less than “Baa2” by Mxxxx’x and “BBB” by S&P, such ratings shall not have been rescinded, and no public announcement shall have been made by S&P the respective rating agencies that any ratings the rating of the Offered Purchased Notes have been placed under review.
(c) On the date of the Final Memorandum, KPMG LLC shall have furnished to the Initial Purchaser an “agreed upon procedures” letter, dated the date of delivery thereof, in form and substance satisfactory to the Initial Purchaser, with respect to certain financial and statistical information contained in the Final Memorandum.
(d) The Initial Purchaser shall have received an opinion, dated the Closing Date, of Nxxxx Pxxxxxx LLP, in-house counsel to the Trustee, in form and substance satisfactory to the Initial Purchaser.
(e) The Initial Purchaser shall have received legal opinions or letters of Dechert Lxxxxx & Wxxxxxx LLP, counsel to the Issuer Company and the Collateral ManagerTrust Depositor, (i) with respect to certain corporate matters with respect to the Issuer and the Collateral Manager and certain federal taxcorporate, securities law and investment company matters, in form and substance satisfactory to the Initial Purchaser.
Purchaser and (fii) [Reserved].
(g) The Initial Purchaser shall have received opinions of Cxxxx Hxxx PLC, Delaware counsel to the Issuer, with respect to certain limited liability company matters with respect to the Issuer “true sale” and “non—consolidation” issues in form and substance satisfactory to the Initial Purchaser.
(f) The Initial Purchaser shall have received an opinion of Vxxxxxx LLP, counsel to the Company, with respect to certain corporate matters and “perfection issues” in form and substance satisfactory to the Initial Purchaser.
(g) The Initial Purchaser shall have received an opinion of Dechert LLP, special tax counsel to the Trust with respect to certain federal tax matters.
(h) The Initial Purchaser shall have received an opinion of Lxxxxx & Wxxxxxx LLP, counsel to the Company and the Trust Depositor, with respect to certain “perfection issues” in form and substance satisfactory to the Initial Purchaser.
(i) The Initial Purchaser shall have received opinions of Pxxxxx Xxxxxxxx LLP, counsel to the Owner Trustee and the Trust, with respect to certain trust matters and with respect to certain “perfection issues,” in each case in form and substance satisfactory to the Initial Purchaser.
(j) The Initial Purchaser shall have received an opinion of Nxxxx Pxxxxxx, counsel to the Trustee, with respect to certain “perfection issues” in form and substance satisfactory to the Initial Purchaser.
(k) The Initial Purchaser shall have received from the Trustee a certificate signed by one or more duly authorized officers of the Trustee, dated the Closing Date, in customary form.
(il) The Initial Purchaser shall have purchased received from the Owner Trustee a certificate signed by one or otherwise acquired the Subordinated Notes in accordance with the terms more duly authorized officers of the Subordinated Note Purchase AgreementsOwner Trustee, dated the Closing Date, in customary form.
(jm) The IndentureInitial Purchaser and its counsel shall have received from the Trust and the Company such further information, certificates and documents as the Collateral Management Initial Purchaser and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all other documents incident hereto and to the other Transaction Documents shall have been executed and delivered by the parties thereto be in all material respects reasonably satisfactory in form and substance reasonably satisfactory to the Initial Purchaser and its counsel; an executed version of each .
(n) All documents incident hereto and to the Transaction Document Documents shall have been delivered be reasonably satisfactory in form and substance to the Initial Purchaser; Purchaser and each Transaction Document its counsel, and the Initial Purchaser and its counsel shall be in full force have received such information, certificates and effect.
(k) The Closing Date occurs on or prior to August 26, 2020documents as they may reasonably request. If any of the conditions specified in this Section 7 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchaser, unless in any case waived by the Initial Purchaser in its sole discretion, this Agreement and all of the Initial Purchaser’s obligations hereunder may be canceled by the Initial Purchaser at or prior to delivery of and payment for the Purchased Notes. Notice of such cancellation shall be given to the Collateral Manager Trust in writing, or by telephone or facsimile confirmed in writing.
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Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchaser Purchasers to purchase and pay for the Purchased Notes on the Closing Date will shall be subject to the accuracy as of the date hereof and as of the Closing Date, in all material respects, of the representations and warranties of the Issuer herein, to the performance, in all material respects, by the Issuer of its obligations hereunder and to the following additional conditions precedentconditions:
(a) The Notes Initial Purchasers shall have been duly authorized, executed, authenticated, delivered received an opinion in form and issued, the Transaction Documents shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the documents required to be delivered pursuant substance satisfactory to the Indenture Initial Purchasers, dated the Closing Date, of Verner, Liipfert, Bernhard, XxXxxxxxx and Hand, counsel for the Company, substantially in respect the form of the Collateral Obligations shall have been delivered to the Custodian pursuant to and as required by the Transaction DocumentsExhibit B hereto.
(b) The Initial Purchaser shall have received a certificate, dated as of the Closing Date, of a manager of the Collateral Manager to the effect that such officer has carefully examined the Final Memorandum and that, to the best of such officer’s knowledge, nothing has come to the attention of such officer that would lead such officer to believe that the "CM Offering Circular Information" (as defined in the Final Memorandum), as of the date of the Final Memorandum and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) The Class A-1 Notes shall have been rated "AAA(sf)" by S&P, the Class A-2 Notes shall have been rated "AAA(sf)" by S&P, the Class B Notes shall have been rated no less than "AA(sf)" by S&P and the Class C Notes shall have been rated no less than "A(sf)" by S&P, such ratings shall not have been rescinded, and no public announcement shall have been made by S&P that any ratings of the Offered Notes have been placed under review.
(d) The Initial Purchaser Purchasers shall have received an opinion, dated the Closing Date, of Nxxxx Pxxxxxx LLPXxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement, and such other related matters as the TrusteeInitial Purchasers may require.
(c) The Initial Purchasers shall have received a letter or letters dated, respectively, the date hereof and the Closing Date, from Ernst & Young LLP, in form and substance satisfactory to the Initial PurchaserPurchasers.
(d) The representations and warranties of the Company contained in this Agreement shall be true and correct as of the date hereof and as of the Closing Date; the Company shall have complied with 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 subsequent to the date of the most recent financial statements in the Final Offering Circular, there shall not have occurred or become known any material adverse change in the business, condition (financial or other), results of operations or prospects of the Company and its subsidiaries, taken as a whole, except as specifically set forth in the Final Offering Circular (a "MATERIAL ADVERSE CHANGE").
(e) The Initial Purchaser sale of the Notes by the Company hereunder shall have received legal opinions not be enjoined (temporarily or letters of Dechert LLP, counsel to permanently) on the Issuer and the Collateral Manager, with respect to certain corporate matters with respect to the Issuer and the Collateral Manager and certain federal tax, securities law and investment company matters, in form and substance satisfactory to the Initial PurchaserClosing Date.
(f) [Reserved]Subsequent to the date as of which information is given in the Final Offering Circular, except as spe- cifically described in the Final Offering Circular (both before and after giving effect to the transactions to occur on or before the Closing Date), none of the Company or any of its subsidiaries 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 not in the ordinary course of business that are material to the business, condition (financial or other), results of operations or prospects of the Company and its subsidiaries, taken as a whole, and, other than as specifically set forth in the Final Offering Circular, there shall not have been any change in the capital stock or long-term indebtedness of the Company or its subsidiaries that is material to the business, condition (financial or other), results of operations or prospects of the Company and its subsidiaries, taken as a whole.
(g) The Initial Purchaser shall have received opinions of Cxxxx Hxxx PLC, Delaware counsel Subsequent to the Issuerdate as of which information is given in the Final Offering Circular, the conduct of the business and operations of the Company or any of its subsidiaries has not been interfered with respect by strike, 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 the Company or any of its subsidiaries have not sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which could not reasonably be expected to certain limited liability company matters with respect to the Issuer in form and substance satisfactory to the Initial Purchaserhave a Material Adverse Effect.
(h) The Initial Purchaser Purchasers shall have received from the Trustee a certificate signed by one or more duly authorized officers of the Trusteecertificate, dated the Closing Date, of the Chairman and the Chief Financial Officer of the Company to the effect that:
(i) The representations and warranties of the Company in customary formthis Agreement are true and correct in all material respects as if made 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, provided, however that if any such representation or warranty is already qualified by materiality, such representation or warranty, as so qualified, is true and correct in all respects;
(ii) At the Closing Date, since the date hereof or subsequent to the respective dates as of which information is given in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred or become known any event or events that could reasonably be expected to have, singly or in the aggregate, a Material Adverse Effect;
(iii) Subsequent to the respective dates as of which information is given in the Final Offering Circular, except in each case as specifically described in the Final Offering Circular, exclusive of any amendment or supplement thereto after the date hereof (both before and after giving effect to the Offering and the transactions contemplated thereby), none of the Company or any of its Subsidiaries 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 not in the ordinary course of business that are material to the business, condition (financial or other), results of operations or prospects of the Company and its subsidiaries, taken as a whole, and, other than as specifically set forth in the Final Offering Circular, there shall not have been any change in the capital stock or long-term indebtedness of the Company or its subsidiaries that is material to the business, condition (financial or other), results of operations or prospects of the Company and its subsidiaries, taken as a whole;
(iv) Subsequent to the respective dates as of which information is given in the Final Offering Circular and exclusive of any amendment or supplement thereto after the date hereof, the conduct of the business and operations of the Company or any of its subsidiaries has not been interfered with by strike, 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 specifically stated therein, the properties of the Company or any of its subsidiaries have not sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which could not reasonably be expected to have, singly or in the aggregate, a Material Adverse Effect; and
(v) The sale of the Notes by the Company hereunder has not been enjoined (temporarily or permanently).
(i) The Purchaser On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have purchased received such further documents, certificates and schedules or otherwise acquired instruments relating to the Subordinated Notes in accordance business, corporate, legal and financial affairs of the Company as they shall have heretofore reasonably requested from the Company. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the terms of the Subordinated Note Purchase Agreements.
(j) The Indenture, the Collateral Management Agreement and all other documents incident hereto and to the other Transaction Documents shall have been executed and delivered by the parties thereto in form and substance provisions hereof only if they are reasonably satisfactory to the Initial Purchaser Purchasers and its counsel; an executed version of each Transaction Document counsel for the Initial Purchasers. The Company shall have been delivered furnish to the Initial Purchaser; Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and each Transaction Document shall be instruments in full force and effect.
(k) The Closing Date occurs on or prior to August 26, 2020. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and such quantities as provided in this Agreement, or if any of the opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchaser, unless in any case waived by the Initial Purchaser in its sole discretion, this Agreement and all of the Initial Purchaser’s obligations hereunder may be canceled by the Initial Purchaser at or prior to delivery of and payment for the Purchased Notes. Notice of such cancellation Purchasers shall be given to the Collateral Manager in writing, or by telephone or facsimile confirmed in writingreasonably request.
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