Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.

Appears in 4 contracts

Samples: Purchase Agreement (Istar Financial Inc), Purchase Agreement (Istar Financial Inc), Purchase Agreement (Istar Financial Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the ~~Notes~~ Securities shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from Xxxxxxxx Chance US~~ the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of (i) Xxxxx Xxxx LLP, counsel for the ~~Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements~~ Company and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light certain of the ~~circumstances under which they were made~~Subsidiary Guarantors, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and ~~scope~~ substance satisfactory to counsel for the Initial Purchasers, as set forth in Exhibit B-1 and Exhibit B-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 ~~opinion~~ Company and the Subsidiary Guarantors and certificates of ~~Xxxxxxx LLP. An opinion~~ public officials, copies of ~~Xxxxxxx LLP~~ which shall ~~be delivered~~ have been provided to the Initial ~~Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial~~ Purchasers~~. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date~~. (b) ~~The~~ On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from~~ the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxxxxx Xxxxxx & Xxxxxxx ~~LLP~~llp, counsel for the Initial Purchasers~~, dated the Closing Date~~, 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 ~~opinion~~opinion involves factual matters, ~~Xxxxxx Xxxxxx & Xxxxxxx LLP~~ 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 ~~received and may rely upon such certificates and other documents and information as it may reasonably request~~ been provided to ~~pass upon such matters~~the Initial Purchasers. (c) ~~The~~ On the date hereof, the Initial Purchasers shall have received from ~~PricewaterhouseCoopers~~ Ernst & Young LLP a comfort letter ~~or letters dated~~dated the date hereof, ~~respectively~~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 ~~date hereof and~~ 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. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company and the Subsidiary Guarantors contained in this Agreement ~~are~~ shall be true and correct on and as of the Time of Execution and on and as of the Closing Date as if made on and as of the Closing Date; the statements of 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 Company ~~has~~ and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions on ~~its~~ their part to be performed or satisfied hereunder at or prior to the Closing Date; and ~~(ii) subsequent to the respective dates~~ , except as ~~of which information is given~~ described in the ~~Final Memorandum~~ Pricing Disclosure Package (exclusive of any amendment or supplement ~~thereto~~thereto after the date hereof), ~~neither~~ subsequent to the date of the most recent financial statements in such 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. (e) 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 Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), none of the Company ~~nor~~ or any of ~~its subsidiaries has~~ the Subsidiaries shall have sustained any ~~material~~ loss or interference with ~~their respective businesses~~ 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~~ dispute, slow down or work stoppage or from any legal or governmental proceeding, ~~and there has not been any materially adverse change (including~~order or decree, ~~without limitation~~which loss or interference, ~~a change in management~~ individually or ~~control), or development involving a prospective materially adverse change,~~ in the ~~condition~~ aggregate, has or would be reasonably likely to have a Material Adverse Effect. (~~financial or otherwise)~~g) The Initial Purchasers shall have received certificates of the Company and each of the Subsidiary Guarantors, ~~management~~dated the Closing Date, ~~earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ signed on behalf of the Company or the applicable Subsidiary Guarantor by its Chairman of the Board, President or any Vice President and the 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 ~~subsidiaries~~part to be performed or satisfied hereunder at or prior to the Closing Date; (ii) at the Closing Date, ~~taken as a whole, except~~ since the date hereof or since the date of the most recent financial statements in ~~each case as described in or contemplated by~~ the ~~Final Memorandum~~ Pricing Disclosure Package (exclusive of any amendment or supplement ~~thereto~~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). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (gh) 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 at all times from and after~~ effect. (i) On the Closing Date, the Initial Purchasers shall have received the Indenture, as amended or supplemented from time to time, executed by the Company, each of the Subsidiary Guarantors and the Trustee and such agreement shall be in full force and effect. (hj) 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, ~~documents~~ letters and schedules or ~~other information~~ instruments relating to the business, corporate, legal and financial affairs of the Company and the Subsidiaries as they ~~may~~ shall have heretofore reasonably requested from the Company. All such documents, opinions, certificates, ~~letters and documents~~ 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 ~~documents~~ instruments in such quantities as the Initial Purchasers shall reasonably request.

Appears in 2 contracts

Samples: Purchase Agreement (Omega Healthcare Investors Inc), Purchase Agreement (Omega Healthcare Investors Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Representative on behalf of the several Initial Purchasers to purchase ~~and pay for~~ the Offered Notes ~~shall,~~ on the Closing Date will be ~~subject~~subject to the accuracy, in ~~the Initial Purchasers’ sole discretion~~all material respects, ~~to the accuracy~~ of the representations and warranties of the Company ~~contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date~~herein, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof~~performance, ~~to the performance~~ in all material respects, by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Offered 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 Commercial Loans shall have been delivered to the Trustee pursuant to the Sale and Servicing Agreement. (b) The Initial Purchasers shall have received a ~~legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company~~certificate, dated as of the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Managing Director of the Company to the effect that such officer has carefully examined this Agreement, each Memorandum and the Transaction Documents and that: , to the best of such officer’s knowledge (i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Commercial Loans except as contemplated by each Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) the Company has ~~no reason~~ complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that (~~other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion~~A) the ~~Final Memorandum~~Time of Sale Information, as of ~~its date or~~ the ~~date~~ Time of ~~such opinion~~Sale, ~~included or includes~~ contains any untrue statement of a material fact or ~~omitted~~ 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, and (B) the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or any Additional Offering Document contained or contains an untrue statement of a material fact or omits 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. (iic) The Class A-l Notes and the ~~Company and~~ Class A-2 Notes shall each ~~of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ have been ~~duly organized~~ rated no less than “Aaa” by Xxxxx’x, “AAA” by S&P, and ~~are validly existing as corporations in good standing under~~ “AAA” by Fitch, the ~~laws of their~~ Class B Notes shall have been rated no less than “Aa2” by Xxxxx’x, “AA” by S&P, and “AA” by Fitch, the Class C Notes shall have been rated no less than “A2” by Xxxxx’x, “A” by S&P and “A” by Fitch, the Class D Notes shall have been rated no less than “Baa2” by Xxxxx’x, “BBB” by S&P and “BBB” by Fitch and the Class E Notes shall have been rated no less than “Baa3” by Xxxxx’x, “BBB-” by S&P and “BBB-” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the ~~failure to be so qualified would amount to a material liability or disability to~~ rating of the ~~Company and its subsidiaries, taken as a whole;~~ Offered Notes have been placed under review. (d) On the ~~Company and each~~ date of ~~its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in~~ the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, KPMG International shall have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by an “agreed upon procedures” letter, dated the ~~Company pursuant~~ date of delivery thereof, in form and substance satisfactory to ~~this Agreement,~~ the ~~compliance by the Company with the other provisions of this Agreement and the consummation~~ Representative on behalf of the ~~other transactions herein contemplated do not (x) require the consent~~Initial Purchasers, ~~approval, authorization, registration or qualification of or~~ with ~~any governmental authority, except such as have been obtained or made (~~respect to certain financial and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum. (~~xii~~e) ~~commencing with~~ Initial Purchasers shall have received an opinion, dated the ~~Company’s taxable year ended December 31~~Closing Date, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of ~~operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes~~ in- house counsel to the ~~Initial Purchasers as contemplated by this Agreement~~ Trustee, in form and ~~the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior~~ substance satisfactory to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy Representative on behalf of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (bf) The Initial Purchasers shall have received a legal ~~opinion from~~ opinions of Winston & Xxxxxx ~~Xxxxxx & Xxxxxxx~~ LLP, counsel ~~for~~ to the Company and the Trust Depositor, (i) with respect to certain corporate, federal tax, securities law and investment company matters, in form and substance satisfactory to the Representative on behalf of the Initial Purchasers and (ii) with respect to certain “true sale” and “non-consolidation” issues in form and substance satisfactory to the Representative on behalf of the Initial Purchasers. (g) The Initial Purchasers shall have received an opinion of Xxxxxxx & Xxxxxx LLP, ~~dated~~ counsel to the ~~Closing Date~~Company and the Trust Depositor, with respect to certain ~~legal matters relating~~ “perfection issues” in form and substance satisfactory to ~~this Agreement and such other related matters as~~ the Representative on behalf of the Initial Purchasers. (h) The Initial Purchasers ~~may reasonably require. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx LLP~~ shall have received opinions of Xxxxxx Xxxxxxxx LLP, counsel to the Owner Trustee and ~~may rely upon such certificates~~ the Trust, with respect to certain trust matters and ~~other documents~~ with respect to certain “perfection issues,” in each case in form and ~~information as it may reasonably request~~ substance satisfactory to ~~pass upon such matters~~the Representative on behalf of the Initial Purchasers. (ci) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dj) The Initial Purchasers shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form. (k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 satisfactory in all material respects to the Initial Purchasers and its counsel ~~for the Initial Purchasers. The Company shall furnish to the Initial Purchasers~~ such ~~conformed copies of such opinions~~further information, ~~certificates, letters,~~ certificates and documents ~~in such quantities~~ as the Initial Purchasers and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel. (1) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. 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 Representative on behalf of the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Representative on behalf of the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile confirmed in writing.

Appears in 2 contracts

Samples: Purchase Agreement (NewStar Financial, Inc.), Purchase Agreement (NewStar Financial, Inc.)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Representative on behalf of the several Initial Purchasers to purchase ~~and pay for~~ the Offered Notes ~~shall,~~ on the Closing Date will be ~~subject~~subject to the accuracy, in ~~the Initial Purchasers’ sole discretion~~all material respects, ~~to the accuracy~~ of the representations and warranties of the Company ~~contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date~~herein, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof~~performance, ~~to the performance~~ in all material respects, by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Offered 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 Commercial Loans shall have been delivered to the Indenture Trustee pursuant to the Sale and Servicing Agreement. (b) The Initial Purchasers shall have received a ~~legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company~~certificate, dated as of the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Managing Director of the Company to the effect that such officer has carefully examined this Agreement, each Memorandum and the Transaction Documents and that: , to the best of such officer’s knowledge (i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Commercial Loans except as contemplated by each Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) the Company has ~~no reason~~ complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that ~~(other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion)~~ the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or ~~the date of such opinion, included~~ any Additional Offering Document contained or ~~includes any~~ contains an untrue statement of a material fact ~~or omitted~~ or omits 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. (iic) The Class A-1 Notes and the ~~Company and~~ Class A-2 Notes shall each ~~of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ have been ~~duly organized~~ rated no less than “Aaa” by Xxxxx’x, “AAA” by S&P, and ~~are validly existing as corporations in good standing under~~ “AAA” by Fitch, the ~~laws of their~~ Class B Notes shall have been rated no less than “Aa2” by Xxxxx’x, “AA” by S&P, and “AA” by Fitch, the Class C Notes shall have been rated no less than “A2” by Xxxxx’x, “A” by S&P and “A” by Fitch, the Class D Notes shall have been rated no less than “Baa2” by Xxxxx’x, “BBB” by S&P and “BBB” by Fitch and the Class E Notes shall have been rated no less than “Ba2” by Xxxxx’x, “BB” by S&P and “BB” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the ~~failure to be so qualified would amount to a material liability or disability to~~ rating of the ~~Company and its subsidiaries, taken as a whole;~~ Offered Notes have been placed under review. (d) On the ~~Company and each~~ date of ~~its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in~~ the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, KPMG International shall have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by an “agreed upon procedures” letter, dated the ~~Company pursuant~~ date of delivery thereof, in form and substance satisfactory to ~~this Agreement,~~ the ~~compliance by the Company with the other provisions of this Agreement and the consummation~~ Representative on behalf of the ~~other transactions herein contemplated do not (x) require the consent~~Initial Purchasers, ~~approval, authorization, registration or qualification of or~~ with ~~any governmental authority, except such as have been obtained or made (~~respect to certain financial and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum. (~~xii~~e) ~~commencing with~~ Initial Purchasers shall have received an opinion, dated the ~~Company’s taxable year ended December 31~~Closing Date, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of ~~operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes~~ in-house counsel to the ~~Initial Purchasers as contemplated by this Agreement~~ Indenture Trustee, in form and ~~the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior~~ substance satisfactory to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy Representative on behalf of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (bf) The Initial Purchasers shall have received a legal ~~opinion from Xxxxxx Xxxxxx & Xxxxxxx~~ opinions of Dechert LLP, counsel ~~for~~ to the Company and the Trust Depositor, (i) with respect to certain corporate, federal tax, securities law and investment company matters, in form and substance satisfactory to the Representative on behalf of the Initial Purchasers and (ii) with respect to certain “true sale” and “non–consolidation” issues in form and substance satisfactory to the Representative on behalf of the Initial Purchasers. (g) The Initial Purchasers shall have received an opinion of Dechert LLP, ~~dated~~ counsel to the ~~Closing Date~~Company and the Trust Depositor, with respect to certain ~~legal matters relating~~ “perfection issues” in form and substance satisfactory to ~~this Agreement and such other related matters as~~ the Representative on behalf of the Initial Purchasers. (h) The Initial Purchasers ~~may reasonably require. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx LLP~~ shall have received opinions of Xxxxxx Xxxxxxxx LLP, counsel to the Owner Trustee and ~~may rely upon such certificates~~ the Trust, with respect to certain trust matters and ~~other documents~~ with respect to certain “perfection issues,” in each case in form and ~~information as it may reasonably request~~ substance satisfactory to ~~pass upon such matters~~the Representative on behalf of the Initial Purchasers. (ci) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Indenture Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Indenture Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dj) The Initial Purchasers shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form. (k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 satisfactory in all material respects to the Initial Purchasers and its counsel ~~for the Initial Purchasers. The Company shall furnish to the Initial Purchasers~~ such ~~conformed copies of such opinions~~further information, ~~certificates, letters,~~ certificates and documents ~~in such quantities~~ as the Initial Purchasers and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel. (l) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. 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 Representative on behalf of the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Representative on behalf of the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Samples: Purchase Agreement (NewStar Financial, Inc.)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and on each Delivery Date, of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements hereunder~~ obligations hereunder, and to each of the following additional terms and conditions: (a) ~~On the Closing Date, the~~ No Initial ~~Purchasers~~ Purchaser shall have ~~received a legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company, dated the Closing Date,~~ discovered and disclosed to the ~~effect that: (i)~~ Company prior to or on such ~~counsel has no reason to believe~~ Delivery Date that ~~(other than~~ the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date~~ Offering Memorandum or ~~the date of such opinion, included~~ any amendment or ~~includes~~ supplement thereto contains any untrue statement of a fact which, in the opinion of counsel to the Initial Purchasers, is material ~~fact or omitted~~ or omits to state any fact which is material ~~fact~~ and necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iib) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and ~~each of its “significant subsidiaries”~~ information that they may reasonably request to enable them to pass upon such matters. (c) Xxxxxx Godward LLP shall have furnished to the Initial Purchasers their written opinion, as ~~defined~~ counsel to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in ~~Rule 1.02(w~~form and substance satisfactory to the Initial Purchasers, to the effect that: (i) ~~of Regulation S-X under the Exchange Act) have~~ The Company has been duly organized and ~~are~~ is validly existing as ~~corporations~~ a corporation in good standing under the laws of ~~their respective jurisdictions~~ the State of ~~incorporation and are~~ Delaware, and, based solely on certificates of public officials, is duly qualified to ~~transact~~ do business ~~as foreign corporations~~ and ~~are~~ is in good standing ~~under~~ as a foreign corporation in each jurisdiction in which its ownership or lease of property or the ~~laws~~ conduct of ~~all other jurisdictions~~ its business requires such qualification, except where ~~such counsel has been advised that~~ the failure to be so qualified would ~~amount to~~ not have a ~~material liability or disability to the Company~~ Material Adverse Effect, and ~~its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full~~ has all corporate power and authority necessary to ~~own, lease and operate their respective~~ own or hold its properties and ~~assets and~~ conduct ~~their respective~~ the businesses in which it is engaged, as described in the ~~Final~~ Offering Memorandum; (ii) The Conversion Shares, which are authorized on the date hereof, have been duly and ~~the Company has corporate power to enter into this Agreement, the Registration Rights Agreement~~ validly authorized and ~~the Indenture and to carry out all the terms and provisions hereof and thereof and~~ reserved for issuance upon conversion of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action and are free of ~~the Company and the Agreement has been duly executed~~ preemptive rights; all Conversion Shares, when so issued and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by upon such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company conversion in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be ~~the legal~~duly and validly authorized and issued, ~~valid~~ fully paid and ~~binding obligations~~ nonassessable and free and clear of all liens, encumbrances, equities or claims imposed by or arising from actions of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect).; (~~viii~~iii) The statements in the ~~Company has all requisite corporate power and authority to execute, deliver and perform its obligations~~ Offering Memorandum under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement captions “Description of the ~~Company~~Notes” and “Description of Capital Stock,” insofar as they purport to summarize the provisions of the Indenture, ~~enforceable against~~ the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Pledge Agreement, the Registration Rights Agreement, the ~~Indenture and the Notes, the Exchange~~ Notes and the ~~Private Exchange Notes,~~ Common Stock (including the ~~issuance, offering~~ Conversion Shares) are accurate and ~~sale of the Notes~~ complete in all material respects to the ~~Initial Purchasers by~~ extent required if such statements were contained in a registration statement on Form S-3 under the ~~Company~~ Securities Act; (iv) There is no restriction upon the voting or transfer of, any shares of Common Stock pursuant to ~~this Agreement,~~ the ~~compliance by~~ Company’s certificate of incorporation or bylaws; (v) To the ~~Company with the other provisions~~ knowledge of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and ~~applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to~~ other than as set forth in the Offering ~~of the Notes and the application of the proceeds therefrom~~Memorandum, ~~will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any~~ there are no legal or governmental proceedings pending ~~or threatened~~ to which the Company or any of its subsidiaries is a party or to of which ~~the~~ any property or asset of the Company or any of its subsidiaries is the subject ~~that would be required to be described in a prospectus pursuant~~ which, if determined adversely to the ~~Act~~ Company or any of its subsidiaries might have a Material Adverse Effect or which might reasonably be expected to materially and adversely affect the consummation of the transactions contemplated by this Agreement or the performance by the Company of its obligations hereunder; to the actual knowledge of such counsel, no such proceedings are overtly threatened or contemplated by governmental authorities or, except as set forth or contemplated in the Offering Memorandum, overtly threatened by others; and, to the actual knowledge of such counsel, the aggregate of all pending legal or governmental proceedings to which the Company and its subsidiaries are a party or of which any of their property or assets is the subject (other than the Company’s or any of its subsidiaries’ patent applications currently pending before the U.S. Patent and Trademark Office or before any foreign governmental authority that administers the registration of patents) which are not described in the ~~Final Memorandum or any statutes~~Offering Memorandum, ~~regulations~~including ordinary routine litigation incidental to the business, ~~contracts or other documents that would~~ could not reasonably be ~~required~~ expected to ~~be described~~ result in a ~~prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum~~Material Adverse Effect. (~~xii~~vi) ~~commencing with the Company’s taxable year ended December 31~~The execution, ~~1998~~delivery and performance of this Agreement, the ~~Company was organized and has operated in conformity with~~ Indenture, the ~~requirements for qualification as a real estate investment trust (“REIT”) under the Code,~~ Pledge Agreement and the ~~Company’s present~~ Registration Rights Agreement and ~~proposed method of operation, as represented by~~ the ~~Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act~~ issuance of the Notes is and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby do not result in any violation of the provisions of the certificate of incorporation or bylaws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of the properties or assets of the Company; and, except as may be required by the securities or “blue sky” laws of any state of the United States in connection with the sale of the ~~Notes to~~ Notes, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the ~~Initial Purchasers as contemplated by~~ execution, delivery and performance of this ~~Agreement~~ Agreement, the Indenture and the ~~Final Memorandum~~ Pledge Agreement by the Company and the issuance of the Notes and the Conversion Shares and the consummation of the transactions contemplated hereby and thereby; (vii) No registration of the Notes or the Conversion Shares under the Securities Act, and no qualification of the Indenture or an indenture or the Pledge Agreement under the Trust Indenture Act, is required in connection with the offer, sale and delivery of the Notes or in connection with the ~~initial resale~~ conversion of the Notes into Conversion Shares, in each case, in the manner contemplated by the Offering Memorandum, this Agreement, the Indenture and the Pledge Agreement; (viii) The statements in the Offering Memorandum under the caption “Certain United States Federal Income Tax Considerations,” insofar as they purport to constitute summaries of matters of United States federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects to the extent required if such statements were contained in a registration statement on Form S-3 under the Securities Act; (ix) The Company is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended; (x) The Company has all necessary corporate right, power and authority to execute and deliver each of the Operative Documents to which it is a party and to perform its obligations thereunder and to issue, sell and deliver the Notes and the Conversion Shares to the Initial Purchasers; (xi) This Agreement has been duly authorized, executed and delivered by the Company; (xii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a legally valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, by general principles of equity and limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), and by an implied covenant of good faith and fair dealing; (xiii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by the Initial ~~Purchasers~~ Purchasers, constitutes a legally valid and binding agreement of the Company enforceable against the Company in accordance with ~~Section 8~~ its terms, except as rights to indemnity contained therein may be limited by applicable law and except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, by general principles of ~~this Agreement~~equity and limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), and ~~prior to~~ by an implied covenant of good faith and fair dealing; (xiv) The Pledge Agreement has been duly authorized, executed and delivered by the ~~commencement~~ Company and, assuming due authorization, execution and delivery thereof by the Collateral Agent, constitutes a legally valid and binding agreement of the ~~Exchange Offer~~ Company enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, by general principles of equity and limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), and by an implied covenant of good faith and fair dealing; (xv) Under the Uniform Commercial Code as in effect on the date hereof in the State of New York (the “NYUCC”), the provisions of the Pledge Agreement are sufficient to create and grant a security interest in the Collateral Account (as defined in the ~~Registration Rights~~ Pledge Agreement) or and the ~~effectiveness of the Shelf Registration Statement~~ Pledged Securities (as defined in the ~~Registration Rights~~ Pledge Agreement) credited thereto in favor of the Collateral Agent to secure the payment and performance of the Obligations (as defined in the Pledge Agreement); (xvi) Under the NYUCC, the ~~Indenture is not required~~ provisions of the Pledge Agreement are effective to ~~be qualified under~~ perfect the ~~TIA~~security interest of the Collateral Agent in the Collateral Account and the Pledged Securities credited thereto, ~~in each case~~ assuming that (i) ~~(A) that~~ New York is deemed the ~~purchasers who buy such Notes in~~ Securities Intermediary’s jurisdiction within 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~~ meaning of Section 8-110 of the ~~Notes is made in an offshore transaction as defined in Regulation S,~~ NYUCC; (ii) the ~~accuracy~~ Collateral Account is a “securities account” within the meaning of Article 8 of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and NYUCC; (iii) the ~~due performance~~ Pledged Securities are “security entitlements” within the meaning of Article 8 of the NYUCC, and (iv) X.X. Xxxxxx Trust Company, National Association, in its capacity as the Securities Intermediary under the Pledge Agreement is a securities intermediary within the meaning of Section 8-102(a)(14) of the NYUCC; (xvii) Assuming that the Collateral Agent and each of the holders of the Notes has given value within the meaning of Section 8-502 of the NYUCC and without notice of an adverse claim within the meaning of Sections 8-105 and 8-502 of the NYUCC (and as adverse claim is defined in Section 8-102(a)(1) of the NYUCC), no person may assert an action based on an adverse claim against the Collateral Agent in accordance with Section 8-502 of the NYUCC; and (xviii) The Notes have been duly authorized by the Company and when executed, issued and authenticated in accordance with terms of the Indenture and delivered to and paid for by the Initial ~~Purchasers~~ Purchasers, will constitute legally valid and binding obligations of the ~~agreements set forth~~ Company, entitled to the benefits of the Indenture and enforceable against the Company in ~~Section 8 hereof~~accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, by general principles of equity and limitations on availability of equitable relief, including specific performance (regardless of whether such enforceability is considered in a proceeding in equity or at law), and by an implied covenant of good faith and fair dealing. In rendering ~~any~~ such opinion, such counsel may ~~rely~~state that its opinion is limited to matters governed by the federal laws of the United States of America, ~~as to~~ the laws of the State of New York, the Delaware General Corporation Law and the NYUCC, and may state that it is relying, in respect of matters of New York law (other than the NYUCC), upon Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, and in respect of matters of fact, ~~to the extent such counsel deems proper, on~~ upon certificates of ~~responsible~~ officers of the ~~Company~~ Company, provided that such counsel shall state that it believes that the Initial Purchasers and ~~public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware,~~ it are justified in relying upon such certificates. Such counsel shall also have furnished to the ~~extent satisfactory in form and scope to counsel for the~~ Initial ~~Purchasers~~Purchasers a written statement, ~~upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered~~ addressed to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated ~~the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Delivery Date, in form and substance satisfactory to ~~counsel for~~ the Initial Purchasers~~. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board~~, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers~~ to the effect ~~that: (i)~~ that during the ~~representations~~ course of preparing the Offering Memorandum, such counsel participated in conferences with officers and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any representatives of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing DateCompany’s independent public accountants, the Initial Purchasers and their counsel, at which the contents of the Offering Memorandum were discussed, and while such counsel ~~for~~ has not independently verified and is not passing upon the ~~Initial Purchasers shall~~ accuracy, completeness or fairness of the statements made in the Offering Memorandum except as explicitly set forth above, no facts 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 satisfactory in all material respects come to the ~~Initial Purchasers and counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies~~ attention of such ~~opinions~~counsel which lead it to believe that the Offering Memorandum (other than the financial statements, ~~certificates~~financial and statistical data and supporting schedules as to which such counsel shall make no statement), ~~letters~~as of its date or as of such Delivery Date, ~~and documents~~ contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in ~~such quantities as~~ order to make the ~~Initial Purchasers shall reasonably request~~statements therein, in light of the circumstances under which they were made, not misleading.

Appears in 1 contract

Samples: Purchase Agreement (Nektar Therapeutics)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from Xxxxxxxx Chance US~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the ~~Company~~Issuers, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchaser, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light Each of the ~~circumstances under which they were made~~Company, ~~not misleading.~~ Aerosol Services Company, Inc. (ii"AEROSOL") ~~the Company~~ and ~~each of its “significant subsidiaries”~~ Kolmar Laboratories, Inc. (~~as defined in Rule 1.02(w~~"KOLMAR") ~~of Regulation S-X under the Exchange Act) have been duly organized and are~~ is validly existing ~~as corporations~~ and in good standing under the laws of ~~their~~ its respective ~~jurisdictions~~ jurisdiction of incorporation and ~~are duly qualified~~ has all requisite corporate power and corporate authority to ~~transact business as foreign corporations~~ (a) enter into and ~~are in good standing~~ perform its obligations under the ~~laws of all other jurisdictions where such counsel has been advised that~~ Indenture, this Agreement and the ~~failure to be so qualified would amount to a material liability or disability to the Company~~ Registration Rights Agreement and ~~its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to~~ (b) own, lease and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the Final Memorandum. Each of the Company, Aerosol and Kolmar is duly qualified to do business as a foreign corporation in good standing in the jurisdictions listed on Schedule II hereto. (ii) The Company has all requisite corporate power and corporate authority to execute, deliver and perform each of its obligations under the Notes, the Exchange Notes and the ~~Company~~ Private Exchange Notes; each of Aerosol and Kolmar has all requisite corporate power and corporate authority to ~~enter into this Agreement~~execute, deliver and perform each of its obligations under its Guarantee, its Exchange Notes Guarantee and its Private Exchange Notes Guarantee; the ~~Registration Rights Agreement and~~ Inden- ture meets the requirements for qualification under the TIA as in effect on the date of such opinion; the Indenture ~~and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out~~ has been duly authorized by ~~it; all of the issued and outstanding shares of capital stock of~~ each of the Company~~’s significant subsidiaries~~, ~~except as otherwise set forth in the Final Memorandum~~Aerosol and Kolmar and, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been when duly executed and delivered by each Issuer (assuming the ~~Company; (v) the~~ due authorization, execution and delivery thereof by the Trustee), will constitute the valid and legally binding agreement of each Issuer, enforceable against each Issuer in accordance with its terms, except (i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and (ii) that such firm need express no opinion as to the enforceability or effect of Section 4.09 of the ~~Indenture~~ Indenture. (iii) The Notes have each been duly authorized by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery ~~thereof~~ of the Indenture by the ~~Trustee), the Indenture will be a legal, valid~~ Trustee and ~~binding agreement~~ due authentication and delivery of the ~~Company, enforceable against~~ Notes by the ~~Company~~ Trustee in accordance with ~~its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect~~the Indenture). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be ~~the legal,~~ valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the ~~Indenture;~~ Indenture and enforceable against the Company in accordance with their terms, except (i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and (ii) that such firm need express no ~~holder~~ opinion as to the enforceability or effect of ~~securities~~ Section 4.09 of the ~~Company has any right which has not~~ Indenture. (iv) The Guarantees by each of Aerosol and Kolmar have been ~~fully exercised or waived to require~~ duly authorized by Aerosol and Kolmar, respectively, and, when duly executed and delivered by Aerosol and Kolmar, respectively, in accordance with the ~~Company to register~~ terms of this Agreement (assuming the ~~offer or sale of any securities owned by such holder under the Act in the offering~~ due authorization, execution and delivery of the ~~Notes contemplated~~ Indenture by ~~this Agreement~~ the Trustee and the Indenture and the Guarantee by Piedmont), will be valid and binding obligations of the Guarantors enforceable against each of the Guarantor in accordance with their terms, ex- (i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and (ii) that such firm need express no opinion as to the ~~Exchange Offer contemplated by~~ enforceability or effect of Section 4.09 of the ~~Registration Rights Agreement;~~Indenture. (~~vii~~v) ~~the~~ The Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and ~~when~~ if the Exchange Notes and the Private Exchange Notes ~~are~~ were duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture on the date of such opinion (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), ~~will~~ they would be ~~the legal,~~ valid and binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their ~~terms~~ terms, except (~~subject~~i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, as insolvency, (including, without limitation, all laws relating to ~~enforcement of remedies, to applicable bankruptcy~~fraudulent transfers), reorganization, ~~insolvency,~~ moratorium and other similar laws now or ~~other laws~~ hereafter in effect relating to or affecting creditors’ ' rights generally ~~from time~~ and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and (ii) that such firm need express no opinion as to ~~time in effect)~~the enforceability or effect of Section 4.09 of the Indenture. (~~viii~~vi) The Exchange Notes Guarantees and the ~~Company has all requisite corporate power~~ Private Exchange Notes Guarantees of Aerosol and ~~authority to execute~~Kolmar have been duly authorized by Aerosol and Kolmar, ~~deliver~~ respectively, and, if the Exchange Notes Guarantees and ~~perform its obligations under~~ the Private Exchange Notes Guarantees were duly executed and delivered by Aerosol and Kolmar, respectively, in accordance with the terms of the Registration Rights ~~Agreement;~~ Agreement and the Indenture on the date of such opinion (assuming due authorization, execution and delivery of the Indenture by the Trustee and the Indenture, the Exchange Note Guarantee and the Piedmont Exchange Note Guarantee by Piedmont), they would be valid and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms, except (i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium and other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and (ii) that such firm need express no opinion as to the enforceability or effect of Section 4.09 of the Indenture. (vii) The Registration Rights Agreement has been duly authorized by each of the ~~Company~~ Company, Aerosol and Kolmar and, when duly executed and delivered by each of the ~~Company~~ Company, Aerosol and Kolmar (assuming due authorization, execution and delivery thereof by the Initial ~~Purchasers~~Purchaser and Piedmont), will be a ~~legal,~~ valid and binding agreement of each of the ~~Company~~Issuers, enforceable against each of the ~~Company~~ Issuers in accordance with its ~~terms~~ terms, except (~~subject~~i) to the extent that the enforceability thereof may be limited by (A) bankruptcy, as insolvency (including, without limitation, all laws relating to ~~enforcement of remedies, to applicable bankruptcy~~fraudulent transfers), reorganization, ~~insolvency,~~ moratorium and other similar laws now or ~~other laws~~ hereafter in effect relating to or affecting creditors’ ' rights generally ~~from time to time~~ and (B) general principles of equity (regardless of whether enforcement is sought in ~~effect~~ a proceeding at law or in equity) and ~~except~~ (ii) that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (viii) This Agreement and the consummation by each of the Company, Aerosol and Kolmar of the transactions contemplated hereby have been duly authorized by each of the Company, Aerosol and Kolmar. This Agreement has been duly executed and delivered by each of the Company, Kolmar and Aerosol. (ix) The Indenture, the Notes, the Guarantees and the Registration Rights Agreement, conform in all material respects to the descriptions thereof contained in the Final Memorandum. (x) The statements set forth under the headings "Risk Factors -- Subordination of the Notes and the Guarantees," "Description of Certain Terms of the Preferred Stock and the Warrant Agreement," "Exchange Offer; Registration Rights" and "Description of Notes" in the Final Memorandum, insofar as such statements constitute a summary of legal matters, documents or proceedings referred to therein, fairly present such legal matters, documents and proceedings in all material respects. (xi) The execution and delivery by the ~~Company of~~Company, Kolmar and ~~the performance by the Company~~ Aerosol of ~~its obligations under,~~ this Agreement, the Registration Rights ~~Agreement~~Agreement and the Indenture, the ~~Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering~~ issuance and sale of the ~~Notes~~ Securities to the Initial ~~Purchasers by~~ Purchaser and the ~~Company~~ performance of the Company's, Kolmar's and Aerosol's respective obligations pursuant to this Agreement, the ~~compliance by the Company with the other provisions of this~~ Registration Rights Agreement and the ~~consummation of the other transactions herein contemplated do~~ Indenture (i) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms ~~and~~ or provisions of, or constitute a default under the Articles of Incorporation or similar organizational document or bylaws of any of the Company, Kolmar or Aerosol, (ii) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default (with the passage of time or otherwise) under, or result in the imposition or creation of (or the obligation to create or impose) any ~~indenture~~security interest, mortgage, ~~deed~~ pledge, claim, lien, encumbrance or adverse interest of ~~trust~~any nature (each, ~~lease~~ a "Lien") on any properties of the Company, Kolmar or ~~other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries~~ Aerosol or any of their respective ~~properties are bound~~subsidiaries or an acceleration of indebtedness pursuant to any of the agreements listed on Schedule III hereto, where, in any such instance, such breach, default, Lien, acceleration of indebtedness or conflict could reasonably be expected to have, individually or in the ~~charter documents~~ aggregate, a material adverse effect on the general affairs, management, business condition (financial or ~~by-laws~~ otherwise), prospects or results of operations of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the ~~application of the proceeds therefrom~~Subsidiaries, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification taken as a ~~real estate investment trust (“REIT”) under the Code~~whole, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) ~~the due performance by~~ will not conflict with or violate any Applicable Law (as hereinafter defined) or Applicable Order (as hereinafter defined), it being understood that we express no opinion as to any violation of any Applicable Law or Applicable Order as a result of the Initial ~~Purchasers~~ Purchaser's involvement, the involvement of any of the ~~agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters~~ Initial Purchaser's affiliates or the involvement of ~~fact,~~ subsequent purchasers of the Securities from the Initial Purchaser because of the Initial Purchaser's legal or regulatory status or because of other facts specifically pertaining to the ~~extent~~ Initial Purchaser, the Initial Purchaser's affiliates or such ~~counsel deems proper~~other purchasers. The term "Applicable Law" means any law, ~~on certificates of responsible officers~~ rule and regulation of the ~~Company and public officials and~~United States of America, ~~as to matters involving~~ the ~~application~~ State of ~~laws of any jurisdiction other than~~ California, the State of New York ~~or the United States or the~~ and any General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing DateDelaware that, in ~~form and substance satisfactory~~ our experience, is normally applicable to ~~counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman~~ transactions of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or type contemplated by ~~the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of~~ this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement ~~executed by~~ and the ~~Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date~~Indenture, ~~the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates~~provided, ~~documents or other information~~ that we express no opinion 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 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 shall reasonably request."blue sky" or state

Appears in 1 contract

Samples: Purchase Agreement (Aerosol Services Co Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase ~~and pay for~~ the Offered Notes ~~shall,~~ on the Closing Date will be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~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 Business Loans and related Loan Files shall have been delivered to the Indenture Trustee pursuant to the Transfer and Servicing Agreement. (b) The Initial Purchasers shall have received a ~~legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company~~certificate, dated the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Executive or Senior Vice President of the Company to the effect that such officer has carefully examined this Agreement, the Final Memorandum and the Transaction Documents and that: , to the best of such officer’s knowledge (i) since the date information is given in the Final Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Business Loans except as contemplated by the Final Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company set forth herein are true and correct as of the Closing Date, (iii) the Company has ~~no reason~~ complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that ~~(other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion)~~ the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or ~~the date of such opinion, included or includes~~ any Additional Offering Document contains an untrue statement of a material fact ~~or omitted~~ or omits 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. (iic) ~~the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ The Class A Notes shall have been ~~duly organized~~ rated no less than “Aaa” by Xxxxx’x, “AAA” by S&P, and ~~are validly existing as corporations in good standing under~~ “AAA” by Fitch, the ~~laws of their~~ Class B Notes shall have been rated no less than “Aa2” by Xxxxx’x, “AA” by S&P, and “AA” by Fitch and the Class C Notes shall have been rated no less than “A1” by Xxxxx’x, “A” by S&P and “A+” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the ~~failure to be so qualified would amount to a material liability or disability to~~ rating of the ~~Company and its subsidiaries, taken as a whole;~~ Offered Notes have been placed under review. (d) On the ~~Company and each~~ date of ~~its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in~~ the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, Xxxxx & Xxxxx shall have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by an “agreed upon procedures” letter, dated the ~~Company pursuant~~ date of delivery thereof, in form and substance satisfactory to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial ~~Purchasers~~ Purchasers, with respect to certain financial and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum. (~~xii~~e) ~~commencing with~~ Initial Purchasers shall have received an opinion, dated the ~~Company’s taxable year ended December 31~~Closing Date, ~~1998~~of Xxxxx X. Xxx, in–house counsel to the ~~Company was organized and has operated~~ Indenture Trustee, substantially in ~~conformity with~~ the ~~requirements for qualification~~ form attached hereto as ~~a real estate investment trust~~ Exhibit A. (~~“REIT”~~f) ~~under the Code~~Initial Purchasers shall have received an opinion of Xxxxxx & Xxxxxx, ~~and the Company’s present and proposed method of operation, as represented by~~ counsel to the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) ~~(A) that the purchasers who buy such Notes~~ with respect to certain corporate matters substantially in the ~~initial resale thereof are qualified institutional buyers~~ form attached hereto as ~~defined in Rule 144A promulgated under the Act (“QIBs”) or (B) that the offer or sale of the Notes is made in an offshore transaction as defined in Regulation S,~~ Exhibit B and (ii) with respect to there being no consents required to transfer the ~~accuracy of~~ business Loans substantially in the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, form attached hereto as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.Exhibit C. (bg) The Initial Purchasers shall have received ~~a legal opinion from~~ opinions of Winston & Xxxxxx ~~Xxxxxx & Xxxxxxx~~ LLP, counsel ~~for~~ to the ~~Initial Purchasers~~Company, ~~dated~~ the ~~Closing Date~~Trust Depositor and the Trust, (i) with respect to certain ~~legal matters relating~~ corporate, federal tax, securities law and investment company matters, substantially in the forms attached hereto as Exhibit D and (ii) with respect to ~~this Agreement~~ certain “true sale,” “non–consolidation” issues and ~~such other related matters~~ “perfection issues” substantially in the forms attached hereto as ~~the~~ Exhibit E. (h) The Initial Purchasers ~~may reasonably require. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx LLP~~ shall have received opinions of Xxxxxxxx, Xxxxxx & Finger, counsel to the Owner Trustee and ~~may rely upon such certificates~~ the Trust, (i) substantially in the forms attached hereto as Exhibit F, (ii) with respect to certain “trust issues” substantially in the form attached hereto as Exhibit G and ~~other documents and information~~ (iii) with respect to certain “perfection issues” substantially in the forms attached hereto as ~~it may reasonably request to pass upon such matters.~~Exhibit H. (ci) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Indenture Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Indenture Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dj) The Initial Purchasers shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form. (k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 satisfactory in all material respects to the Initial Purchasers and their counsel ~~for~~ such further information, certificates and documents as the Initial ~~Purchasers. The Company~~ Purchasers and their counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall ~~furnish~~ be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers ~~such conformed copies of such opinions, certificates, letters,~~ and their counsel. (l) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in ~~such quantities as~~ form and substance to the Initial Purchasers and their counsel, and the Initial Purchasers and their counsel shall have received such information, certificates and documents as they may reasonably request. 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 Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Samples: Purchase Agreement (American Capital Strategies LTD)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from Xxxxxxxx Chance US LLP~~the opinion, dated as of the Closing Date and addressed to the Initial Purchaser and Cadwalader, Xxxxxxxxxx & Xxxx, of Estudio Ferrero Abogados, special Peruvian counsel for the ~~Company~~Issuers, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date,~~ Initial Purchaser to the effect that: (i) ~~such counsel has no reason to believe that (other than the financial statements~~ Each of Doe Run Mining and ~~other financial information contained therein~~Doe Run Peru is duly organized, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions~~ Peru and has all requisite power and authority to own its properties and to conduct its business as described in the Memorandum. Each of ~~incorporation~~ Doe Run Mining and ~~are~~ Doe Run Peru is duly qualified to ~~transact~~ do business as a foreign ~~corporations and are~~ entity in good standing ~~under the laws of~~ in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such ~~counsel has been advised that~~ qualification, except where the failure to be so qualified would ~~amount to a material liability~~ not, individually or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to thereinaggregate, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIAMaterial Adverse Effect. (viii) ~~the Notes have been duly authorized by all necessary corporate action~~ Each of ~~the Company and, on~~ Doe Run Mining and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company Doe Run Peru has all requisite ~~corporate~~ power and authority to execute, deliver and perform its obligations under this Agreement, the ~~Registration Rights Agreement;~~ Indenture, the Registration Rights Agreement ~~has~~ and the Guarantees and to consummate the transactions contemplated hereby and thereby; this Agreement, the Indenture, the Registration Rights Agreement and the Guarantees and the consummation by each of Doe Run Mining and Doe Run Peru of the transactions contemplated hereby and thereby have been duly and validly authorized by each of Doe Run Mining and Doe Run Peru. This Agreement, the ~~Company and~~Indenture, ~~when~~ the Registration Rights Agreement and the Guarantees have been duly executed and delivered by ~~the Company (assuming due authorization, execution~~ each of Doe Run Mining and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations)Doe Run Peru. (ixiii) No legal or governmental proceedings are pending or, to the ~~execution and delivery by~~ knowledge of such counsel, threatened to which any of Doe Run Mining or Doe Run Peru is a party or to which the ~~Company of~~property or assets of Doe Run Mining or Doe Run Peru is subject which, ~~and~~ if determined adversely to Doe Run Mining or Doe Run Peru, would result, individually or in the ~~performance by~~ aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the ~~Company~~ consummation of ~~its obligations under, this Agreement,~~ or otherwise challenge the ~~Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and~~ issuance or sale of the Notes to ~~the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and~~ be sold hereunder or the consummation of the other transactions ~~herein contemplated do not~~ described in the Memorandum under the caption "Use of Proceeds." (xiv) ~~require the consent, approval, authorization, registration~~ None of Doe Run Mining or ~~qualification~~ Doe Run Peru is (i) in violation of ~~or with~~ any ~~governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws~~ provision of the ~~various states~~ charter, "Estatuto" or bylaws (or similar organizational documents), (ii) to the knowledge of ~~the United States of America and other U.S. jurisdictions~~ such counsel, in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any ~~of the terms and provisions of~~statute, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation applicable to any of them or any of their respective properties or assets, except for any such breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect, or (iii) in breach or default under (nor has any event occurred which, with notice or passage of time or both, would constitute a default under) or in violation of any ~~court~~ of the terms or ~~other governmental authority or~~ provisions of any ~~arbitrator~~ Contract known to such ~~counsel and applicable to the Company~~ counsel, except for any such breach, default, violation or ~~its significant subsidiaries; (x) the Company is not an “investment company” and~~event which would not, ~~after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined~~ individually or in the ~~1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is~~ aggregate, have a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final MemorandumMaterial Adverse Effect. (~~xii~~v) ~~commencing with~~ The execution, delivery and performance of this Agreement and the ~~Company’s taxable year ended December 31~~consummation of the transactions contemplated hereby (including, ~~1998~~without limitation, the ~~Company was organized~~ issuance and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial ~~Purchasers as contemplated by this Agreement and the Final Memorandum~~ Purchaser) will not conflict with or constitute or result in ~~connection~~ a breach or a default under (or an event which with ~~the initial resale~~ notice or passage of ~~the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement~~time or both would constitute a default under) or ~~the effectiveness~~ violation of ~~the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming~~ any of (i) ~~(A) that~~ the ~~purchasers who buy~~ terms or provisions of any Contract known to such ~~Notes~~ counsel, except for any such conflict, breach, violation, default or event which would not, individually or 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 Notes is made in an offshore transaction as defined in Regulation Saggregate, have a Material Adverse Effect, (ii) the ~~accuracy~~ provisions of the ~~Initial Purchasers’ representations in Section 8 and those~~ Charter, "Estatutos" or bylaws (or similar organizational document) of ~~the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and~~ Doe Run Mining or Doe Run Peru, or (iii) ~~the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof. In rendering~~ any ~~such opinion~~statute, judgment, decree, order, rule or regulation known to such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be ~~furnished~~ applicable to ~~the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President~~ Doe Run Mining or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company Doe Run Peru or any of ~~its subsidiaries, taken as a whole~~their respective properties or assets, except ~~in each case as described in~~ for any such conflict, breach or ~~contemplated by the Final Memorandum (exclusive of any amendment~~ violation which would not, individually or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the ~~rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”~~aggregate, ~~as such term is defined for purposes of Rule 436(g)(2) under the Act~~have a Material Adverse Effect. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.

Appears in 1 contract

Samples: Purchase Agreement (Doe Run Resources Corp)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from Xxxxxxxx Chance US~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchaser, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming Assuming the due authorization, execution and delivery ~~thereof~~ of the Indenture by the Company and the Trustee), the Indenture will ~~be a legal,~~ constitute the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect). The Indenture meets the requirements for qualification under the TIA~~and (ii) general principles of equity. (viii) The Notes are in the form contemplated by the Indenture. Assuming that the Notes have been duly ~~authorized by all necessary corporate action of the Company and~~authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company ~~and~~and paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, ~~assuming~~ execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the ~~Trustee~~Trustee in accordance with the Indenture), the Notes will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture~~; no holder of securities of~~ , and enforceable against the Company ~~has any right which has not been fully exercised~~ in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or ~~waived~~ other similar laws now or hereafter in effect relating to ~~require the Company to register the offer or sale~~ creditors' rights generally and (ii) general principles of ~~any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;~~equity. (~~vii~~iii) When the Exchange Notes and the Private Exchange Notes have been ~~duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are~~ duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), the Exchange Notes and the Private Exchange Notes will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect)~~and (ii) general principles of equity. (~~viii~~iv) Assuming the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery ~~thereof~~ of the Registration Rights Agreement by the Company and the Initial ~~Purchasers)~~Purchaser, the Registration Rights Agreement will ~~be a legal,~~ constitute the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that (~~subject, as~~ A) the enforcement thereof may be subject to ~~enforcement of remedies, to applicable~~ (i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect~~ and ~~except that~~ (ii) general principles of equity and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ixv) Assuming the due authorization, execution and delivery of the Assumption Agreement by the Company, the Assumption Agreement will constitute the valid and legally binding agreement of the Company enforceable against the Company in accordance with its terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations. (vi) The Indenture, the Notes, the Exchange Notes, the Registration Rights Agreement, the Credit Agreement and the Merger Agreement conform in all material respects to the descriptions thereof contained in the Final Memorandum. (vii) The statements in the Final Memorandum under the caption "Certain Relationships and Related Transactions," insofar as they are descriptions of certain provisions of contracts or agreements, fairly summarize such provisions in all material respects. (viii) The execution and delivery of this Agreement, the Indenture, the Registration Rights Agreement, the Assumption Agreement and the Credit Agreement and the consummation of the transactions contemplated hereby, thereby and under the Merger Agreement (including, without limitation, the issuance and sale of the Notes to the Initial Purchaser) will not conflict with or constitute or result in a breach or a default under (or an event that with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any Applicable Contracts (as defined), except for any such conflict, breach, violation, default or event that would not, individually or in the aggregate, have a Material Adverse Effect or (ii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 8 hereof) any Applicable Laws (as defined). "Applicable Contracts" mean those contracts set forth on Schedule 1 to this Agreement. "Applicable Laws" means the laws of the State of New York and the laws of the United States of America, in each case, that, in such counsel's experience, are normally applicable to transactions of the type provided for herein (it being understood that such counsel has made no special investigation with respect to any other laws), but excluding securities or blue sky laws of any jurisdiction, anti-fraud laws of any jurisdiction, rules and regulations of the National Association of Securities Dealers, Inc. and the Trust Indenture Act of 1939, as amended. Such counsel need not express any opinion, however, as to whether the execution or delivery by the Company ofof the Notes, ~~and~~ this Agreement, the Indenture, the Registration Rights Agreement, the Credit Agreement or the Assumption Agreement, or the performance by the Company of its obligations ~~under, this~~ thereunder or under the Merger Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification will constitute a violation of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default ~~under~~under any covenant, ~~any indenture, mortgage, deed of trust, lease~~ restriction or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, provision 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter financial ratios or ~~letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished~~ tests or ~~caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman~~ any aspect of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the financial condition ~~(financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth~~ or results of operations of the ~~Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)~~Company. (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.

Appears in 1 contract

Samples: Purchase Agreement (Universal Hospital Services Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Representative on behalf of the several Initial Purchasers to purchase ~~and pay for~~ the Offered Notes ~~shall,~~ on the Closing Date will be ~~subject~~subject to the accuracy, in ~~the Initial Purchasers’ sole discretion~~all material respects, ~~to the accuracy~~ of the representations and warranties of the Company ~~contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date~~herein, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof~~performance, ~~to the performance~~ in all material respects, by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Offered 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 Required Loan Documents in respect of the Commercial Loans shall have been delivered to the Trustee pursuant to and as required by the Sale and Servicing Agreement. (b) The Initial Purchasers shall have received a ~~legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company~~certificate, dated as of the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer, Treasurer or any Managing Director of the Company to the effect that such officer has carefully examined this Agreement, each Memorandum and the Transaction Documents and that:, to the best of such officer’s knowledge (i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Commercial Loans except as contemplated by each Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) the Company has ~~no reason~~ complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that (~~other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion~~A) the ~~Final Memorandum~~Time of Sale Information, as of ~~its date or~~ the ~~date~~ Time of ~~such opinion~~Sale, ~~included or includes~~ contained any untrue statement of a material fact or ~~omitted~~ 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, and (B) the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or any Additional Offering Document contained or contains an untrue statement of a material fact or omits 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. (iic) The Class A-1 Notes and the ~~Company and~~ Class A-2 Notes shall each ~~of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ have been ~~duly organized~~ rated no less than “Aaa” by Xxxxx’x, “AAA” by S&P, and ~~are validly existing as corporations in good standing under~~ “AAA” by Fitch, the ~~laws of their~~ Class B Notes shall have been rated no less than “Aa2” by Xxxxx’x, “AA” by S&P, and “AA” by Fitch, the Class C Notes shall have been rated no less than “A2” by Xxxxx’x, “A” by S&P and “A” by Fitch, and the Class D Notes shall have been rated no less than “Baa1” by Xxxxx’x, “BBB” by S&P and “BBB+” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the ~~failure to be so qualified would amount to a material liability or disability to~~ rating of the ~~Company and its subsidiaries, taken as a whole;~~ Offered Notes have been placed under review. (d) On the ~~Company and each~~ date of ~~its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in~~ the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, KPMG International shall have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by an “agreed upon procedures” letter, dated the ~~Company pursuant~~ date of delivery thereof, in form and substance satisfactory to ~~this Agreement,~~ the ~~compliance by the Company with the other provisions of this Agreement and the consummation~~ Representative on behalf of the ~~other transactions herein contemplated do not (x) require the consent~~Initial Purchasers, ~~approval, authorization, registration or qualification of or~~ with ~~any governmental authority, except such as have been obtained or made (~~respect to certain financial and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum. (~~xii~~e) ~~commencing with~~ Initial Purchasers shall have received an opinion, dated the ~~Company’s taxable year ended December 31~~Closing Date, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of ~~operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes~~ in-house counsel to the ~~Initial Purchasers as contemplated by this Agreement~~ Trustee, in form and ~~the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior~~ substance satisfactory to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy Representative on behalf of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (bf) The Initial Purchasers shall have received a legal ~~opinion from~~ opinions of Winston & Xxxxxx ~~Xxxxxx & Xxxxxxx~~ LLP, counsel ~~for~~ to the Company and the Trust Depositor, (i) with respect to certain corporate, federal tax, securities law and investment company matters, in form and substance satisfactory to the Representative on behalf of the Initial Purchasers and (ii) with respect to certain “true sale” and “non–consolidation” issues in form and substance satisfactory to the Representative on behalf of the Initial Purchasers. (g) The Initial Purchasers shall have received an opinion of Xxxxxxx & Xxxxxx LLP, ~~dated~~ counsel to the ~~Closing Date~~Company and the Trust Depositor, with respect to certain ~~legal matters relating~~ “perfection issues” in form and substance satisfactory to ~~this Agreement and such other related matters as~~ the Representative on behalf of the Initial Purchasers. (h) The Initial Purchasers ~~may reasonably require. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx LLP~~ shall have received opinions of Xxxxxx Xxxxxxxx LLP, counsel to the Owner Trustee and ~~may rely upon such certificates~~ the Trust, with respect to certain trust matters and ~~other documents~~ with respect to certain “perfection issues,” in each case in form and ~~information as it may reasonably request~~ substance satisfactory to ~~pass upon such matters~~the Representative on behalf of the Initial Purchasers. (ci) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dj) The Initial Purchasers shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form. (k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 satisfactory in all material respects to the Initial Purchasers and its counsel ~~for the Initial Purchasers. The Company shall furnish to the Initial Purchasers~~ such ~~conformed copies of such opinions~~further information, ~~certificates, letters,~~ certificates and documents ~~in such quantities~~ as the Initial Purchasers and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel. (l) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. 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 Representative on behalf of the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Representative on behalf of the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Samples: Purchase Agreement (NewStar Financial, Inc.)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and again on the Closing Date as if made again on and as of such date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of ~~its covenants and agreements hereunder~~ their obligations hereunder, and to each of the following additional terms and conditions: (a) On The Offering Memorandum shall have been printed and copies made available to you not later than 5:00 p.m., New York City time, on the business day following the date of this Agreement, or at such later date and time as you may approve in writing. (b) No Initial Purchaser shall have discovered and disclosed to the Company on or prior to the Closing ~~Date~~Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the ~~Initial Purchasers shall have received a legal~~ opinion ~~from Xxxxxxxx Chance US LLP~~of Latham & Watkins, counsel for the ~~Company~~Initial Purchasers, ~~dated~~ is material ox xxxxs tx xxxxx a fact which, in the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date opinion of such ~~opinion~~counsel, ~~included or includes any untrue statement of a~~ is material ~~fact or omitted or omits to state any material fact~~ and necessary ~~in order~~ to make the statements ~~therein~~contained in the Offering Memorandum, in the light of the circumstances under which they were made, not misleading. (iic) ~~the Company~~ All corporate proceedings and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other ~~jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability~~ legal matters incident to the ~~Company~~ authorization, form and ~~its subsidiaries, taken as a whole; the Company and each~~ validity of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Series A Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this AgreementGuarantees, the Registration Rights Agreement, the Indenture and the ~~Notes~~Offering Memorandum, ~~the Exchange Notes~~ and ~~the Private Exchange Notes, the issuance, offering and sale of the Notes~~ all other legal matters relating to ~~the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of~~ this Agreement and the ~~consummation of the other~~ transactions ~~herein~~ contemplated ~~do not (x) require the consent~~hereby, ~~approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may~~ shall be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent reasonably satisfactory in ~~form and scope~~ all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (d) Skadden, Arps, Slate, Meagher & Flom (Illinois), special counsel to the ~~opinion~~ Company, and Donaxx X. Xewix, Xeneral Counsel of ~~Xxxxxxx LLP. An opinion of Xxxxxxx LLP~~ the Company, each shall ~~be delivered~~ have fuxxxxxxx xx xxx Initial Purchasers their written opinions addressed to the Initial Purchasers and ~~counsel for~~ dated the Closing Date, in the form provided separately to the Initial Purchasers ~~covering matters reasonably requested~~ on the date hereof, with such changes, if any, as may be mutually agreed by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Dateparties. (be) The Initial Purchasers shall have received ~~a legal~~ from Latham & Watkins such opinion ~~from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers~~or opinions, dated the Closing Date, ~~with respect to certain legal matters relating to this Agreement~~ xxxx xespxxx xx the issuance and ~~such~~ sale of the Series A Notes, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require~~. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx LLP~~ . (f) The Company shall have entered into the Credit Facilities and other Credit Documents and the Initial Purchasers shall have received counterparts, conformed as executed, thereof, and ~~may rely upon~~ the Company shall have borrowed such ~~certificates~~ amounts thereunder as contemplated in the Offering Memorandum; provided, that if the proceeds from the issuance of the Series A Notes are to be placed into a secured proceeds account at the Closing Date, then such Credit Facility and other ~~documents and information as it~~ Credit Documents may ~~reasonably request~~ be entered into on or prior to ~~pass upon such matters~~the closing of the Acquisition. (cg) The Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof. (h) The Company and the Initial Purchasers shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof. (i) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers~~ each of PricewaterhouseCoopers, LLP ~~a letter~~ and PwC Deutsche Revision Aktiengesellschaft Wirtschaftsprufungsgesellschaft, independent certified public accountants, letters addressed to the Company or ~~letters dated~~Schmalbach-Lubeca, ~~respectively~~as applicable, and Lehman Brothers Inc., Deutschx Xxxx Xxxurities Inc., Banc of Americx Xxxxrities LLC, Bank One Capital Markets, Inc., BNP Paribas Securities Corp., Dresdner Kleinwort Wasserstein-Grantchester, Inc., McDonald Investments Inc., SunTrust Xxxxxxx Xxrkets, Inc. and Wells Fargo Brokerage Services, LLC, substantially in the form herexxxxxe approved by Lehman Brothers Inc., and dated the date hereof and the Closing Datx, (x) confirming that they are independent accountants as required by the Securities Act and its Rules and Regulations or under the rules of the American Institute of Certified Public Accountants, as applicable, (ii) stating, as of the date of each 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 Business Days prior to the date of each letter), the procedures and findings of such firm with respect to the financial information and other matters covered by the letter delivered concurrently with this Agreement and (iii) with respect to the letter delivered on the Closing Date, confirming the procedures and findings set forth in ~~form and substance~~ the letter delivered concurrently with this Agreement; such letters shall be reasonably satisfactory to ~~counsel for the Initial Purchasers.~~Lehman Brothers Inc. (dj) The Company shall have furnished ~~or caused to be furnished to the~~ xx xxe Initial Purchasers at a certificate, dated as of the Closing Date, of a ~~certificate of its Chairman of the Board, its~~ Vice President ~~or its Chief Executive Officer~~ and its Chief Financial Officer ~~satisfactory to the Initial Purchasers to the effect that:~~ or Treasurer stating that (i) the ~~representations~~ representations, warranties and ~~warranties~~ agreements of the Company (after giving effect to all materiality qualifiers therein) and the Guarantors in ~~this Agreement~~ Section 2 are true and correct as ~~if made on~~ of such Closing Date and as giving effect to the consummation of the ~~Closing Date~~transactions contemplated by the Acquisition Agreement, the Credit Documents and this Agreement; ~~and the Company 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; and~~ (ii) ~~subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither~~ the Company ~~nor~~ and each Guarantor has complied in all material respects with all its agreements contained herein; and (iii) the conditions set forth in Sections 8(k) and 8(l) have been fulfilled. (k) None of the Company or any of its subsidiaries ~~has sustained~~ shall have sustained, since the date of the latest audited financial statements included in the Offering Memorandum, (i) any ~~material~~ loss or interference with ~~their respective businesses or properties~~ its business from fire, ~~flood~~explosion, ~~hurricane, accident~~ flood or other calamity, whether or not covered by insurance, or from any labor dispute or ~~any legal~~ court or governmental ~~proceeding~~action, ~~and~~ order or decree, otherwise than as set forth or contemplated in the Offering Memorandum or (ii) since such date, there ~~has~~ shall not have been any ~~materially adverse change (including, without limitation, a~~ change in ~~management~~ the capital stock or ~~control~~long-term debt of the Company, any Material Adverse Effect otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), ~~or development involving a prospective materially adverse change~~is, in the ~~condition (financial or otherwise)~~reasonable, ~~management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ good faith judgment of the ~~Company~~ Initial Purchasers, so material and adverse as to make it impracticable or ~~any~~ inadvisable to proceed with the payment for and delivery of ~~its subsidiaries, taken as a whole, except~~ the Series A Notes being delivered on such Closing Date on the terms and in ~~each case as described~~ the manner contemplated in ~~or contemplated by~~ the ~~Final Memorandum (exclusive of any amendment or supplement thereto)~~Offering Memorandum. (el) Subsequent to the execution and delivery of this Agreement ~~and prior to the Closing Date, there~~ (i) no downgrading shall ~~not~~ have occurred ~~any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change,~~ in the rating accorded ~~any of~~ the Company’s 's debt securities by any “"nationally recognized statistical rating organization”, ," as ~~such~~ that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities. (fm) The ~~Indenture~~ Series A Notes shall have been ~~executed and delivered~~ designated for trading on the PORTAL Market; provided that the failure of the Series A Notes to be so listed shall not be due to any action taken or failure to act by ~~all~~ the ~~parties thereto~~Initial Purchasers. (gn) On If the proceeds from the issuance of the Series A Notes are to be placed into a secured proceeds account at the Closing Date, the Company shall have entered into a pledge, security and control agreement in a form reasonably satisfactory to Lehman Brothers. If such agreement is entered into, then on the Cloxxxx Xate, Skadden, Arps, Slate, Meagher & Flom (Illinois), special counsel to the Company, shall haxx xxxxishxx xo the Initial Purchasers its written opinion addressed to the Initial Purchasers as to the validity and perfection of the security interest created pursuant to such agreement and such other matters as the parties may mutually agree, such opinion to be in form and substance reasonably satisfactory to the Initial Purchasers. (o) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by federal or state authorities; (iii) the United States shall have become directly engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such), in each case, as to make it, in the judgment of the Initial Purchasers, impracticable or inadvisable to proceed with offering or delivery of the Series A Notes being delivered on the Closing Date on the terms and in the manner contemplated in the Offering Memorandum. (p) At the Closing Date, the Company's existing credit facilities dated August 10, 1998 (the "Existing Credit Facilities") shall be repaid in full, or, if not, then either (1) the Company shall have secured an amendment, consent or waiver under the Existing Credit Facilities such that the issuance of the Series A Notes and the transactions contemplated hereby will not cause a breach of, or default under, the Existing Credit Facilities or (2) the Initial Purchasers shall have received an opinion of Skadden, Arps, Slate, Meagher & Flom (Illinois) stating that the ~~Registration Rights Agreement executed by~~ issuance of the ~~Company~~ Series A Xxxxx and xxx transactions contemplated hereby will not cause a breach of, or default under, the Existing Credit Facilities, such ~~agreement shall~~ opinion to be in ~~full force~~ form and ~~effect at all times from and after~~ substance reasonably satisfactory to the ~~Closing Date. (h) On or before~~ Initial Purchasers. At the Closing Date, the ~~Initial Purchasers and counsel for~~ Company shall provide to the Initial Purchasers ~~shall have received such further certificates~~evidence reasonably satisfactory to them of the repayment of or amendment, ~~documents~~ consent or ~~other information as they may have reasonably requested from~~ waiver under the ~~Company~~Existing Credit Facilities. All opinions, ~~certificates~~letters, ~~letters~~ evidence and ~~documents delivered pursuant to~~ certificates mentioned above or elsewhere in this Agreement ~~will comply~~ shall be deemed to be in compliance with the provisions hereof only if they are in form and substance 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 shall reasonably request~~.

Appears in 1 contract

Samples: Purchase Agreement (Ball Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase ~~and pay for~~ the ~~Notes shall, be subject~~Securities on the Closing Date hereunder is subject to the fulfillment, in the Initial Purchasers’ ' sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each 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 to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Issuers, be contemplated. No order suspending the sale of the Securities in any jurisdiction designated by the Initial Purchasers shall have ~~received a legal opinion from Xxxxxxxx Chance US LLP, counsel~~ been issued and no proceedings for ~~the Company, dated the Closing Date~~that purpose shall have been commenced or shall be pending or, to the ~~effect that:~~knowledge of the Issuers, shall be contemplated. (ib) ~~such counsel has no reason~~ Subsequent to ~~believe that~~ the date hereof, there shall not have occurred any change, or any development involving a prospective change, in or affecting the condition (~~other than~~ financial or other), business, prospects, properties, net worth, or results of operations of the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date~~ Company or the ~~date~~ Subsidiaries, which in the opinion of ~~such opinion~~the Initial Purchasers, ~~included~~ would materially adversely affect the market for the Securities. (c) The Initial Purchasers shall not have been advised by the Issuers or ~~includes any~~ shall not have concluded and disclosed to the Company that the Offering Memorandum contains an untrue statement of a fact which in the opinion of the Initial Purchasers or their counsel is material ~~fact or omitted~~ or omits to state ~~any~~ a fact which in the opinion of the Initial Purchasers or their counsel, is material ~~fact~~ and is required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (iid) The Initial Purchasers shall have received on the Closing Date an opinion of Mayor, Day, Caldxxxx & Xeetxx, X.L.P., counsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, to the effect that: (i) the Company is a corporation duly incorporated and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are~~ validly existing ~~as corporations~~ in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have Delaware with full corporate power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the ~~Final~~ Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.

Appears in 1 contract

Samples: Purchase Agreement (KCS Energy Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase and pay for the ~~Notes shall,~~ Securities to be ~~subject~~purchased by it on the Closing Date hereunder are subject to the fulfillment, in ~~the~~ such Initial ~~Purchasers’~~ Purchaser's sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each 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 to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the ~~Initial Purchasers~~ use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have ~~received a legal opinion from Xxxxxxxx Chance US LLP, counsel~~ been issued and no proceedings for ~~the Company, dated the Closing Date~~those purposes shall have been commenced or shall be pending or, to the ~~effect that:~~knowledge of the Company and Parent Guarantor, threatened. No order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company and Parent Guarantor, threatened. (b) Subsequent to the date hereof, (i) ~~such counsel has no reason to believe that~~ except as disclosed or contemplated in the Offering Memorandum, there shall not have occurred any material adverse change in the condition (~~other than~~ financial or other), business, prospects, properties, assets, net worth or results of operations of the ~~financial statements~~ Parent Guarantor and ~~other financial information contained therein~~the Subsidiaries, taken as ~~to which such counsel need express no opinion~~a whole, which, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, and (ii) the ~~Final Memorandum, as of its date or the date of such opinion, included or includes~~ Offering Memorandum shall not contain any untrue statement of a material fact or ~~omitted or omits~~ omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~. (ii)~~ , if amending or supplementing the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified Offering Memorandum to ~~transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where~~ correct any such ~~counsel has been advised that the failure to be so qualified would amount to a material liability~~ misstatement or ~~disability to the Company and its subsidiaries~~omission could, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy sole judgment of the Initial Purchasers~~’ representations in Section 8 and those~~ , materially adversely affect the marketability of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateSecurities. (bc) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from~~ of Tuke Xxxx & Xxxxxxx, PLC counsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, in the form of Exhibit B hereto. (d) The Initial Purchasers shall have received on the Closing Date an opinion of Osler, Xxxxxx & Harcourt, Canadian counsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, in the form of Exhibit C hereto. (e) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxxxx Xxxxxx & ~~Xxxxxxx LLP~~Xxxxxxx, counsel for the Initial Purchasers, dated the Closing Date, and addressed to 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, 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 mattersrequest. (cf) The Initial Purchasers shall have received ~~from PricewaterhouseCoopers LLP a letter or~~ on the Closing Date an opinion of Xxxxxx, Xxxx & Xxxx, Canadian counsel for the Initial Purchasers, dated the Closing Date and addressed to the Initial Purchasers, with respect to such matters as the Initial Purchasers may request. (g) The Initial Purchasers shall have received "cold comfort" letters ~~dated~~addressed to the Initial Purchasers, ~~respectively,~~ and dated the date hereof and the Closing Date, from Xxxxxx Xxxxxxxx & Co. substantially in ~~form and substance satisfactory to counsel for~~ the forms heretofore approved by the Initial Purchasers. (di) ~~The Company~~ There shall not have ~~furnished~~ been any change in the capital stock of the Parent Guarantor or ~~caused to be furnished~~ any Subsidiary nor any material increase in the short-term or long-term debt of the Parent Guarantor or any Subsidiary from that set forth or contemplated in the Offering Memorandum; (ii) except as disclosed or contemplated by the Offering Memorandum, the Parent Guarantor and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the ~~Initial Purchasers at~~ Parent Guarantor and the ~~Closing~~ Subsidiaries, taken as a ~~certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:~~ whole; (iiii) all the representations and warranties of the Parent Guarantor and the Company contained in this Agreement ~~are~~ 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; and (iv) the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of each of the Company ~~has~~ and the Parent Guarantor (or such other officers as are acceptable to the Initial Purchasers), to the effect set forth in this Section 7(h) and in Section 7(i) hereof. (i) The Company and the Parent Guarantor shall not have failed at or prior to the Closing Date to have performed ~~all covenants~~ or complied with any of their respective agreements herein contained and ~~agreements and satisfied all conditions on its part~~ required to be performed or ~~satisfied~~ complied with by them hereunder at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (ej) ~~Subsequent to~~ At the time of the execution ~~and delivery~~ of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing DateAgreement, the ~~Initial Purchasers~~ Company shall ~~have received the Registration Rights Agreement executed by the Company and such agreement shall be~~ deliver in ~~full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date,~~ substantially final form to both 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 satisfactory in all material respects to the Initial Purchasers ~~and counsel for~~ (i) the ~~Initial Purchasers. The Company shall furnish~~ amendment to the ~~Initial Purchasers such conformed copies~~ Loan and Security Agreement dated as of ~~such opinions~~July 18, ~~certificates~~1997 between International Comfort Products Corporation (USA), ~~letters~~the Borrower and NationsBank, ~~and documents in such quantities as~~ N.A., the ~~Initial Purchasers shall reasonably request.~~Lender (the

Appears in 1 contract

Samples: Purchase Agreement (International Comfort Products Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Representative on behalf of the several Initial Purchasers to purchase ~~and pay for~~ the Offered Notes ~~shall,~~ on the Closing Date will be ~~subject~~subject to the accuracy, in ~~the Initial Purchasers’ sole discretion~~all material respects, ~~to the accuracy~~ of the representations and warranties of the Company ~~contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date~~herein, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof~~performance, ~~to the performance~~ in all material respects, by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Offered 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 Commercial Loans shall have been delivered to the Trustee pursuant to the Sale and Servicing Agreement. (b) The Initial Purchasers shall have received a ~~legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company~~certificate, dated as of the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Managing Director of the Company to the effect that such officer has carefully examined this Agreement, each Memorandum and the Transaction Documents and that: , to the best of such officer’s knowledge (i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Commercial Loans except as contemplated by each Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) the Company has ~~no reason~~ complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that (~~other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion~~A) the ~~Final Memorandum~~Time of Sale Information, as of ~~its date or~~ the ~~date~~ Time of ~~such opinion~~Sale, ~~included or includes~~ contains any untrue statement of a material fact or ~~omitted~~ 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, and (B) the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or any Additional Offering Document contained or contains an untrue statement of a material fact or omits 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. (iic) The Class A-1 Notes and the ~~Company and~~ Class A-2 Notes shall each ~~of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ have been ~~duly organized~~ rated no less than “Aaa” by Xxxxx’x, “AAA” by S&P, and ~~are validly existing as corporations in good standing under~~ “AAA” by Fitch, the ~~laws of their~~ Class B Notes shall have been rated no less than “Aa2” by Xxxxx’x, “AA” by S&P, and “AA” by Fitch, the Class C Notes shall have been rated no less than “A2” by Xxxxx’x, “A” by S&P and “A” by Fitch, the Class D Notes shall have been rated no less than “Baa2” by Xxxxx’x, “BBB” by S&P and “BBB” by Fitch and the Class E Notes shall have been rated no less than “Baa3” by Xxxxx’x, “BBB-” by S&P and “BBB-” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the ~~failure to be so qualified would amount to a material liability or disability to~~ rating of the ~~Company and its subsidiaries, taken as a whole;~~ Offered Notes have been placed under review. (d) On the ~~Company and each~~ date of ~~its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in~~ the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, KPMG International shall have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by an “agreed upon procedures” letter, dated the ~~Company pursuant~~ date of delivery thereof, in form and substance satisfactory to ~~this Agreement,~~ the ~~compliance by the Company with the other provisions of this Agreement and the consummation~~ Representative on behalf of the ~~other transactions herein contemplated do not (x) require the consent~~Initial Purchasers, ~~approval, authorization, registration or qualification of or~~ with ~~any governmental authority, except such as have been obtained or made (~~respect to certain financial and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum. (~~xii~~e) ~~commencing with~~ Initial Purchasers shall have received an opinion, dated the ~~Company’s taxable year ended December 31~~Closing Date, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of ~~operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes~~ in-house counsel to the ~~Initial Purchasers as contemplated by this Agreement~~ Trustee, in form and ~~the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior~~ substance satisfactory to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy Representative on behalf of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (bf) The Initial Purchasers shall have received a legal ~~opinion from~~ opinions of Winston & Xxxxxx ~~Xxxxxx & Xxxxxxx~~ LLP, counsel ~~for~~ to the Company and the Trust Depositor, (i) with respect to certain corporate, federal tax, securities law and investment company matters, in form and substance satisfactory to the Representative on behalf of the Initial Purchasers and (ii) with respect to certain “true sale” and “non–consolidation” issues in form and substance satisfactory to the Representative on behalf of the Initial Purchasers. (g) The Initial Purchasers shall have received an opinion of Xxxxxxx & Xxxxxx LLP, ~~dated~~ counsel to the ~~Closing Date~~Company and the Trust Depositor, with respect to certain ~~legal matters relating~~ “perfection issues” in form and substance satisfactory to ~~this Agreement and such other related matters as~~ the Representative on behalf of the Initial Purchasers. (h) The Initial Purchasers ~~may reasonably require. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx LLP~~ shall have received opinions of Xxxxxx Xxxxxxxx LLP, counsel to the Owner Trustee and ~~may rely upon such certificates~~ the Trust, with respect to certain trust matters and ~~other documents~~ with respect to certain “perfection issues,” in each case in form and ~~information as it may reasonably request~~ substance satisfactory to ~~pass upon such matters~~the Representative on behalf of the Initial Purchasers. (ci) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dj) The Initial Purchasers shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form. (k) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 satisfactory in all material respects to the Initial Purchasers and its counsel ~~for the Initial Purchasers. The Company shall furnish to the Initial Purchasers~~ such ~~conformed copies of such opinions~~further information, ~~certificates, letters,~~ certificates and documents ~~in such quantities~~ as the Initial Purchasers and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel. (l) All documents incident hereto and to the Transaction Documents shall be reasonably satisfactory in form and substance to the Representative on behalf of the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. 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 Representative on behalf of the Initial Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Representative on behalf of the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Samples: Purchase Agreement (NewStar Financial, Inc.)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase ~~and pay for~~ the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each 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~~ are subject to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Notes in any jurisdiction designated by the Initial Purchasers shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated. (b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the financial condition, business, prospects, properties, net worth, or results of operations of the Company or the Subsidiaries not contemplated by the Offering Memorandum (excluding any amendments or supplements thereto after the date hereof), which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Notes, or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Offering Memorandum (excluding any amendments or supplements thereto after the date hereof) untrue in any material respect or which, in the opinion of the Company and its counsel or the Initial Purchasers and their counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, materially adversely affect the market for the Notes. (c) The Initial Purchasers shall have received on the Closing Date a ~~legal~~ corporate opinion ~~from Xxxxxxxx Chance US LLP~~of Xxxxxxx & Berlin, Chartered, counsel for the Company, dated the Closing ~~Date,~~ Date and addressed to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, ~~upon~~ in the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date.form attached hereto as Exhibit A. (bd) The Initial Purchasers shall have received on the Closing Date a ~~legal~~ regulatory opinion from Xxxxxxx & Berlin, Chartered, special regulatory counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in the form attached hereto as Exhibit B. (e) The Initial Purchasers shall have received on the Closing Date an opinion from Marcus & Xxxxxxxx, P.C., local counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in the form attached hereto as Exhibit C. (f) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxxxxx X. Xxxxxxxx, Esq., Corporate Counsel of the Company, dated the Closing Date and addressed to the Initial Purchasers in the form attached hereto as Exhibit D. (g) The Initial Purchasers shall have received on the Closing Date opinions of Xxxxx & XxXxxxxx (Australia) in the form attached hereto as Exhibit E, Xxxxx & XxXxxxxx (Hong Kong) in the form attached hereto as Exhibit F, Xxxxx & XxXxxxxx (Germany) in the form attached hereto as Exhibit G, Coudert Freres (France) in the form attached hereto as Exhibit H, TMI Associates (Japan) in the form attached hereto as Exhibit I, Stibbe Simont Xxxxxxx Duhot (The Netherlands) in the form attached hereto as Exhibit J, Xxxxxx ~~Xxxxxx~~ Xxxxxxx Xxxxxxx (United Kingdom) in the form attached hereto as Exhibit K, Advokatfirman Xxxxxxx (Sweden) in the form attached hereto as Exhibit L and Xxxxx & ~~Xxxxxxx~~ XxXxxxxx (Switzerland) in the form attached hereto as Exhibit M, special regulatory counsel for the Company in each of the jurisdictions described above, each dated the Closing Date and addressed to you, as Initial Purchasers. (h) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxxxxxxxx & Xxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, and addressed to the Initial Purchasers, with respect to certain ~~legal matters relating~~ matter referred to ~~this Agreement~~ above and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, 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 mattersrequest. (ci) The Initial Purchasers shall have received ~~from PricewaterhouseCoopers LLP a letter or~~ letters ~~dated~~addressed to the Initial Purchasers, ~~respectively,~~ and dated the date hereof and the Closing ~~Date~~Date from (i) KPMG Peat Marwick LLP, independant certified public accountants, (ii) KPMG, Chartered Accountants and Registered Auditors, independant certified public accountants and (iii) Xxxxxxxx, Blakiston & Xxxxxx, P.A., independent certified public accountants, substantially in ~~form and substance satisfactory to counsel for~~ the forms heretofore approved by the Initial Purchasers. (di) There shall not have been any change in the capital stock of the Company nor any material increase in the short-term or long-term debt of the Company (other than in the ordinary course of business) from that set forth or contemplated in the Offering Memorandum (excluding any amendment or supplement thereto after the date hereof); (ii) there shall not have been, since the respective dates as of which information is given in the Offering Memorandum (excluding any amendment or supplement thereto after the date hereof), except as may otherwise be stated in the Offering Memorandum (excluding any amendment or supplement thereto after the date hereof), any material adverse change in the financial condition, business, prospects, properties, net worth or results of operations of the Company and the Subsidiaries taken as a whole; (iii) the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (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 Offering Memorandum (excluding any amendment or supplement thereto after the date hereof); and (iv) all the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date, and the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of the Company (or such other officers as are acceptable to the Initial Purchasers), to the effect set forth in this Section 7(j) and in Section 7(k) hereof. (k) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date. (l) The Notes shall have been approved for trading on PORTAL. (m) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to any class of securities of the Company, or (ii) it is reviewing its ratings assigned to any class of securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined. (n) The Company shall have furnished or caused to be furnished to the Initial Purchasers ~~at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ such further certificates and ~~its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct~~ documents 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall reasonably 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. (h) On or before the Closing Date, 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 Companyrequested. All such opinions, certificates, letters and other documents ~~delivered pursuant to this Agreement~~ will ~~comply~~ be in compliance with the provisions hereof only if they are reasonably satisfactory in ~~all material respects~~ form and substance to the Initial Purchasers and counsel for the Initial Purchasers. ~~The~~ Any certificate or document signed by any officer of the Company and delivered to the Initial Purchasers, or to counsel for the Initial Purchasers, shall ~~furnish~~ be deemed a representation and warranty by the Company to the Initial Purchasers ~~such conformed copies of such opinions, certificates, letters, and documents in such quantities~~ as to the ~~Initial Purchasers shall reasonably request~~statements made therein.

Appears in 1 contract

Samples: Purchase Agreement (Telegroup Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of its ~~covenants and agreements hereunder~~ obligations hereunder, and to each of the following additional terms and conditions: (a) On No Initial Purchaser shall have discovered and disclosed to the ~~Closing Date~~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 opinion of Xxxxxx & Xxxxxxx, is material or omits to state any fact which is material and necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (b) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters; (c) Xxxxxxx Xxxxxxx & Xxxxxxxx shall have furnished to the Initial Purchasers ~~shall have received a legal opinion from Xxxxxxxx Chance US LLP~~its written opinion, as counsel ~~for~~ to the Company, addressed to the Initial Purchasers and dated such Delivery Date, in form and substance reasonably satisfactory to the ~~Closing Date~~Initial Purchasers, to the effect that: (i) The Company and each of the Delaware Guarantors have been duly organized and are validly existing as corporations in good standing under the laws of Delaware, and have all corporate power and authority necessary to conduct their respective businesses as described in the Offering Memorandum; (ii) All of the outstanding shares of Common Stock of the Company have been duly authorized, validly issued, fully paid and non-assessable; and all of the issued shares of capital stock of each Delaware Guarantor of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (except for directors' qualifying shares) and, based solely on an examination of each such subsidiary's stock ledger and minute book, all such shares are held of record by the Company and/or a subsidiary of the Company; (iii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming the Indenture is a valid and legally binding obligation of the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (iv) The CODES have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the terms of the Purchase Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; and the CODES, when issued and delivered, will conform to the description thereof contained in the Offering Memorandum; (v) The Conversion Shares that are authorized on the date hereof have been duly authorized and validly reserved for issuance upon conversion of the CODES; and the Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable; (vi) The Guarantees have been duly authorized, executed and issued by the Delaware Guarantors and, assuming due authentication of the CODES by the Trustee, upon payment and delivery in accordance with the terms of the Purchase Agreement will constitute valid and legally binding obligations of each of the Delaware Guarantors enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (vii) Assuming that the Guarantees have been duly authorized and issued by each of the Non-Delaware Guarantors and, assuming due authentication of the CODES by the Trustee, upon payment and delivery of the CODES in accordance with the terms of the Purchase Agreement, the Guarantees will constitute valid and legally binding obligations of the Non-Delaware Guarantors enforceable against the Non-Delaware Guarantors. (viii) The statements contained in the Offering Memorandum under the captions "Risk Factors-The CODES are subordinated to all our existing and future senior indebtedness, which may inhibit our ability to repay you," "Risk Factors-The terms of our senior indebtedness could restrict our flexibility and limit our ability to satisfy obligations under the CODES," "Risk Factors--Future sales of common stock of L-3 Holdings in the public market could lower the stock price," "Risk Factors--Delaware Law and the charter documents of L-3 Holdings may impede or discourage a takeover, which could cause the market price of its shares to decline," "Description of Other Indebtedness," and "Description of the CODES," insofar as they describe charter documents, contracts, statutes, rules and regulations and other legal matters, constitute an accurate summary thereof in all material respects; (ix) The statements contained in the Offering Memorandum under the caption "Certain United States Federal Income Tax Considerations," insofar as they purport to constitute summaries of matters of United States federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects; (x) This Agreement has been duly authorized, executed and delivered by the Company and the Delaware Guarantors; and (xi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Delaware Guarantors and, assuming that the Registration Rights Agreement is the valid and legally binding obligation of the Initial Purchasers and Non-Delaware Guarantors, constitutes a valid and legally binding obligation of the Company and the Guarantors, enforceable against the Company and the Guarantors in accordance with its terms. (xii) The issue and sale of the CODES and Guarantees being delivered on such Delivery Date by the Company and the Guarantors and the compliance by the Company and the Guarantors, as applicable, with all of the provisions of this Agreement and the Indenture will not breach or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed as an exhibit to a document incorporated by reference in the Offering Memorandum ("Exchange Act Documents") nor will such actions violate the Certificate of Incorporation or By-Laws or other organizational documents of the Company or the Delaware Guarantors, or any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law or any order known to such counsel issued pursuant to any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law by any court or governmental agency or body or court having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets; and no consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law or, to such counsel's knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law is required for the issue and sale of the CODES by the Company (and the guarantees of such CODES by the Guarantors), except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the CODES and Guarantees by the Initial Purchasers. The opinions set forth in this paragraph are based upon our consideration of only those statutes, rules and regulations which, in such counsel's experience, are normally applicable to securities underwriting transactions. (xiii) No registration of the CODES under the Securities Act and no qualification of the Indenture under the Trust Indenture Act is required for the offer and sale of the CODES by the Company to the Initial Purchasers or the reoffer and resale of the CODES by the Initial Purchasers to the initial purchasers therefrom solely in the manner contemplated by the Offering Memorandum, the Purchase Agreement and the Indenture. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States and the laws of the State of New York, the Delaware General Corporation Law and the Delaware Limited Liability Company Act. Such counsel shall also have furnished to the Initial Purchasers a written statement, addressed to the Initial Purchasers and dated such Delivery Date stating: Such counsel has not independently verified the accuracy, completeness or fairness of the statements made or included in the Offering Memorandum and take no responsibility therefor, except as and to the extent set forth in paragraphs (viii) and (ix) above. In the course of the preparation by the Company of the Offering Memorandum (excluding the Exchange Act Documents), such counsel participated in conferences with certain officers and employees of the Company, with representatives of PricewaterhouseCoopers, LLP and with counsel to the Company. Based upon such counsel's examination of the Offering Memorandum (including the Exchange Act Documents), such counsel's investigations made in connection with the preparation of the Offering Memorandum (excluding the Exchange Act Documents) and such counsel's participation in the conferences referred to above, such counsel has no reason to believe that ~~(other than~~ the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final~~ Offering Memorandum, ~~as of its date or~~ including the ~~date of such opinion, included or includes~~ Exchange Act Documents contains any untrue statement of a material fact ~~or omitted~~ or omits 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~~. (ii) the Company and~~ , except that in each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where case such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for need not express belief with respect to ~~such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to~~ the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium financial statements or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act financial data contained in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or ~~any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or~~ incorporated ~~in the Final Memorandum~~therein by reference. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.

Appears in 1 contract

Samples: Purchase Agreement (L 3 Communications Holdings Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the ~~Notes~~ Units shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from Xxxxxxxx Chance US LLP~~the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxxxxxx X. Xxxxxx, Vice President, General Counsel and Corporate Secretary of the Company, in form and substance reasonably satisfactory to counsel for the ~~Company~~Initial Purchasers, ~~dated the Closing Date,~~ substantially to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and ~~each of its “significant subsidiaries” (~~the Guarantor is duly qualified to do business as ~~defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations~~ a foreign corporation in good standing ~~under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are~~ in ~~good standing under the laws of~~ all ~~other~~ jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such ~~counsel has been advised that~~ qualification, except where the failure to be so qualified would ~~amount~~ not, individually or in the aggregate, reasonably be expected to have a ~~material liability or disability to~~ Material Adverse Effect. (ii) The Company has the ~~Company~~ authorized, issued and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described outstanding capitalization set forth in the Final ~~Memorandum,~~ Memorandum under the heading "Capitalization" and ~~the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and~~ "Description of ~~the Notes to be carried out by it~~Capital Stock"; all of the ~~issued and~~ outstanding shares of capital stock of ~~each~~ the Company have been duly authorized and validly issued, are fully paid and nonassessable and to the knowledge of such counsel were not issued in violation of any preemptive or similar rights; all of the ~~Company’s significant subsidiaries~~outstanding shares of capital stock of the Subsidiaries are owned, ~~except as otherwise set forth in the Final Memorandum~~directly or indirectly, ~~are owned beneficially~~ by the ~~Company~~ Company, free and clear of ~~any~~ all perfected security interests orand, to the ~~best~~ knowledge of such counsel, ~~any~~ free and clear of all other ~~security interests,~~ liens, encumbrances, equities and claims or ~~claims~~restrictions on transferability (other than those imposed by the Act, ~~except for pledges~~ the securities or "Blue Sky" laws of ~~subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize~~ certain ~~provisions of the Notes~~ jurisdictions and the ~~Indenture, provide a fair summary of such provisions~~Credit Agreement) or voting; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company issued in accordance with the terms and conditions contained in the Warrant Agreement, upon exercise of the ~~Registration Rights Agreement and~~ Warrants, the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), Warrant Shares will be ~~the legal~~duly authorized, ~~valid~~ validly issued, fully paid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power nonassessable and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the ~~Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions~~ knowledge of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be ~~an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of~~ subject to any ~~legal~~ preemptive or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandumsimilar rights. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.

Appears in 1 contract

Samples: Purchase Agreement (Jostens Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the Purchased Notes ~~shall,~~ on the Closing Date will be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the ~~Initial Purchasers~~ Transaction Documents shall have ~~received~~ been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Business Loans and related Loan Files shall have been delivered to the Indenture Trustee pursuant to the Transfer and Servicing Agreement. (b) The Initial Purchaser shall receive a ~~legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company~~certificate, dated the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Executive or Senior Vice President of the Company to the effect that such officer has carefully examined this Agreement, the Memorandum and the Transaction Documents and that: , to the best of such officer’s knowledge (i) since the date information is given in the Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Business Loans except as contemplated by the Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company set forth herein are true and correct as of the Closing Date, (iii) the Company has ~~no reason~~ complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that ~~(other than~~ the ~~financial statements~~ Memorandum, and ~~other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum~~any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or ~~the date of such opinion, included or includes~~ any Additional Offering Document contains an untrue statement of a material fact ~~or omitted~~ or omits 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. (iic) ~~the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ The Class A Notes shall have been ~~duly organized~~ rated no less than “Aaa” by Xxxxx’x Investors Services, Inc. (“Moody’s”), “AAA” by Standard & Poor’s Ratings Services, a division of The McGraw–Hill Companies, Inc. (“S&P”), and ~~are validly existing as corporations in good standing under~~ “AAA” by Fitch, Inc. (“Fitch”) and the ~~laws of their~~ Class B Notes shall have been rated no less than “A2” by Moody’s, “A” by S&P, and “A+” by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and rating of the Offered Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification placed under ~~the TIA~~review. (vid) On the ~~Notes have been duly authorized by all necessary corporate action~~ date of the ~~Company and~~Memorandum, ~~on and as of the Closing Date, the Notes will~~ Ernst & Young shall have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes furnished to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not Purchaser an “~~investment company~~agreed upon procedures” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasersletter, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date ~~hereof and the Closing Date~~of delivery thereof, in form and substance satisfactory to ~~counsel for~~ the Initial ~~Purchasers~~Purchaser, with respect to certain financial and statistical information contained in the Memorandum. (de) Initial Purchaser shall have received an opinion, dated the Closing Date, of Xxxxxxxx X. Xxxxxxx, in—house counsel to the Indenture Trustee, substantially in the form attached hereto as Exhibit A. (f) Initial Purchaser shall have received an opinion of Xxxxxx & Xxxxxx, counsel to the Company, (i) with respect to certain corporate matters substantially in the form attached hereto as Exhibit B and (ii) with respect to there being no consents required to transfer the business Loans substantially in the form attached hereto as Exhibit C. (g) The Initial Purchaser shall have received opinions of Winston & Xxxxxx, counsel to the Company, the Trust Depositor and the Trust, (i) with respect to certain corporate, federal tax, securities law and investment company matters, substantially in the forms attached hereto as Exhibit D and (ii) with respect to certain “true sale,” “non–consolidation” issues and “perfection issues” substantially in the forms attached hereto as Exhibit E. (h) The Initial Purchaser shall have received opinions of Xxxxxxxx, Xxxxxx & Finger, counsel to the Owner Trustee and the Trust, (i) substantially in the forms attached hereto as Exhibit F, (ii) with respect to certain “trust issues” substantially in the form attached hereto as Exhibit G and (iii) with respect to certain “perfection issues” substantially in the forms attached hereto as Exhibit H. (i) The Initial Purchaser shall have received from the Indenture Trustee a certificate signed by one or more duly authorized officers of the Indenture Trustee, dated the Closing Date, in customary form. (j) The Initial Purchaser shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form. (k) The Company shall have furnished ~~or caused to be furnished~~ to the Initial ~~Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ Purchaser and its ~~Chief Financial Officer~~ counsel such further information, certificates and documents as the Initial Purchaser and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Initial ~~Purchasers~~ Purchaser and its counsel. (l) All documents incident hereto and to the ~~effect that: (i)~~ Transaction Documents shall be reasonably satisfactory in form and substance to the ~~representations~~ Initial Purchaser and ~~warranties~~ its counsel, and the Initial Purchaser and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the ~~Company~~ conditions specified in this ~~Agreement are true and correct as if made on~~ Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the ~~Closing Date;~~ opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the ~~Company has performed~~ Initial Purchaser, this Agreement and all ~~covenants and agreements and satisfied all conditions on its part to~~ of the Initial Purchaser’s obligations hereunder may be ~~performed or satisfied~~ canceled by the Initial Purchaser at or prior to delivery of and payment for the ~~Closing Date; and (ii) subsequent~~ Purchased Notes. Notice of such cancellation shall be given to the ~~respective dates as of which information is given~~ Company in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurancewriting, or ~~from any labor dispute~~ by telephone or ~~any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change~~ telecopy confirmed in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)writing. (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.

Appears in 1 contract

Samples: Purchase Agreement (American Capital Strategies LTD)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation of the~~ Initial ~~Purchasers~~ Purchasers' obligations to purchase and pay for the Notes ~~shall,~~ shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to (i) the accuracy of the representations and warranties of the Company and MHI herein contained ~~herein~~ as of the date hereof and as of ~~each~~ the Closing Date, ~~as if made on and as of each Closing Date~~(ii) the absence in any certificates, opinions, written statements or letters furnished pursuant to this Section 6 to the ~~accuracy~~ Initial Purchasers or to their counsel, of any qualification or limitation not previously approved by the ~~statements of the Company’s officers made pursuant to the provisions hereof~~Initial Purchasers, to (iii) the performance by the Company and MHI of ~~its covenants~~ their respective obligations hereunder required to be performed on or prior to the Closing Date, and ~~agreements hereunder and to~~ (iv) the following additional conditions: a. Since the date of the latest balance sheet included in the Definitive Memorandum: (ai) there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the capital b. The representations and warranties made by the Company and MHI herein shall be true and correct on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; and the Company and MHI shall have complied in all material respects with all agreements hereunder required to be performed by the Company and MHI. c. As to each Initial Purchaser, the purchase of and payment for the Notes to be purchased by such Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation, order or other restriction. d. The Definitive Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York time, on the day following the date of this Agreement or at such later date and time as to which the Initial Purchasers may agree, and no stop order suspending the qualification or exemption from qualification of the Notes in any jurisdiction referred to in Section 4(e) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. e. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of the Notes; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company or MHI, threatened against, the Company or MHI before any court or arbitrator or any governmental body, agency or official that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably be expected to have a Material Adverse Effect, on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and MHI, taken as a whole. f. On the Closing Date, the Initial Purchasers shall have received the opinion of Haynxx xxx Boonx, X.L.P., counsel to the Company and MHI, dated the g. On the Closing Date, the Initial Purchasers shall have received a ~~legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company~~certificate, dated the Closing Date, to signed by each of the ~~effect that: (i) such counsel has no reason to believe that (other than~~ Chairman of the ~~financial statements~~ Board and ~~other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date~~ Vice President - Finance or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, President and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock Vice President - Finance of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and ~~the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and~~MHI, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to certain legal matters relating to this Agreement and such other ~~related matters~~ certificates of executive officers as the Initial Purchasers may ~~reasonably require. In rendering such opinion~~specify confirming the matters set forth in paragraphs (a), ~~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.~~ (cb) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) ~~The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) ~~Subsequent to the execution and delivery~~ of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the ActSection 6. ~~(f) The Indenture shall have been executed and delivered by all the parties thereto. (g)~~ 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~~ Fulbright & Jawoxxxx X.X.P., an opinion, dated the Closing Date, addressed to the Initial Purchasers, with respect to the Company, MHI, the Offering Memorandum, the offer, sale and resale of the Notes and other related matters as the Initial Purchasers reasonably may require, and the Company shall have furnished to such firm such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. ~~(h) On or before~~ i. Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received from Coopers & Lybrxxx X.X.P., and on the Closing Date, the Initial Purchasers shall have received from Coopers & Lybrxxx X.X.P., a letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and ~~counsel for~~ to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers. j. Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received ~~such further certificates~~from Huddxxxxxx, ~~documents or other information as they may have reasonably requested from~~ xxd on the ~~Company. All opinions~~Closing Date, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are 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 shall ~~reasonably request~~have received from Huddxxxxxx, x letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers. k. On the Closing Date, the Company shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof. l. On 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. m. Each of the Enron Acquisition and the Conoco Acquisition shall be consummated prior to, or simultaneously with, the Closing of the offering on substantially the terms described in the Definitive Memorandum, and the Initial

Appears in 1 contract

Samples: Purchase Agreement (Michael Petroleum Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ ------------------------------------------------- obligations of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase and pay for the ~~Notes shall,~~ Securities to be ~~subject~~purchased by it on the Closing Date hereunder are subject to the fulfillment, in ~~the~~ such Initial ~~Purchasers’~~ Purchaser's sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each 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 to the following ~~additional~~ conditions: (a) At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for those purposes shall have been commenced or shall be pending or, to the knowledge of the Company, threatened. No order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, threatened. (b) On the Closing Date, the Company shall have delivered to the Initial Purchasers ~~shall have received~~ a ~~legal opinion from Xxxxxxxx Chance US LLP~~true, ~~counsel for~~ correct and complete copy of the ~~Company, dated~~ Amended Credit Facility; on and as of the Closing ~~Date,~~ Date (after giving effect to the ~~effect that:~~consummation of the transactions contemplated by this Agreement), there shall not exist any condition which would constitute a Default or an Event of Default (as defined in the Amended Credit Facility). (c) Subsequent to the date hereof, (i) ~~such counsel has no reason to believe that~~ except as disclosed or contemplated in the Offering Memorandum, there shall not have occurred any material adverse change in the condition (~~other than~~ financial or other), business, prospects, properties, assets, net worth or results of operations of the ~~financial statements~~ Company and ~~other financial information contained therein~~the Subsidiaries, taken as ~~to which such counsel need express no opinion~~a whole, which, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) the ~~Final Memorandum, as of its date or the date of such opinion, included or includes~~ Offering Memorandum shall not contain any untrue statement of a material fact or ~~omitted or omits~~ omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~. (ii)~~ , if amending or supplementing the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified Offering Memorandum to ~~transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where~~ correct any such ~~counsel has been advised that the failure to be so qualified would amount to a material liability~~ misstatement or ~~disability to the Company and its subsidiaries~~omission could, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy sole judgment of the Initial Purchasers~~’ representations in Section 8 and those~~ , materially adversely affect the marketability of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateSecurities. (bd) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from~~ of Stroock & Stroock & Xxxxx LLP, counsel for the Company, and Xxxxx Xxxxxxxx, Corporate Counsel for the Company, each dated the Closing Date and addressed to the Initial Purchasers, in the forms of Exhibits B and C hereto. (e) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxxxx Xxxxxx & ~~Xxxxxxx LLP~~Xxxxxxx, counsel for the Initial Purchasers, dated the Closing Date, and addressed to 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, 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 mattersrequest. (cf) The Initial Purchasers shall have received ~~from PricewaterhouseCoopers LLP a letter or~~ "cold comfort" letters ~~dated~~addressed to the Initial Purchasers, ~~respectively,~~ and dated the date hereof and the Closing Date, from Ernst & Young, substantially in ~~form and substance satisfactory to counsel for~~ the forms heretofore approved by the Initial Purchasers. (di) There shall not have been any change in the capital stock of the Company or any Subsidiary nor any material increase in the short-term or long-term debt of the Company or any Subsidiary from that set forth or contemplated in the Offering Memorandum; (ii) except as disclosed or contemplated by the Offering Memorandum, the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole; (iii) all the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; and (iv) the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the chief executive officer or president and the chief financial or accounting officer of the Company, to the effect set forth in this Section 7(g) and in Section 7(h) hereof. (h) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its respective agreements herein contained and required to be performed or complied with by them hereunder at or prior to the Closing Date. (i) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to any class of securities of the Company (including the Securities), or (ii) it is reviewing its ratings assigned to any class of securities of the Company (including the Securities) with a view to possible downgrading, with negative implications or direction not determined. (j) The Securities shall have been approved for trading in DTC's Same- Day Funds Settlement System. (k) The Company shall have consummated the Tender Offer and Consent Solicitation (as described in the Offering Memorandum). (l) The Company shall have furnished or caused to be furnished to the Initial Purchasers ~~at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ such further certificates and ~~its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct~~ customary closing documents 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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~~requested. All such opinions, certificates, letters and other documents ~~delivered pursuant to this Agreement~~ will ~~comply~~ be in compliance with the provisions hereof only if they are reasonably satisfactory in ~~all material respects~~ form and substance to the Initial ~~Purchasers~~ Purchasers. Any certificate or document signed by any officer of the Company and delivered to the Initial Purchasers, or to counsel for the Initial Purchasers~~. The~~ , shall be deemed a representation and warranty by the Company ~~shall furnish~~ to the Initial Purchasers ~~such conformed copies of such opinions, certificates, letters, and documents in such quantities~~ as to the ~~Initial Purchasers shall reasonably request~~statements made therein.

Appears in 1 contract

Samples: Purchase Agreement (Ametek Inc/)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ ------------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the ~~Notes shall,~~ Securities shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the ~~representations~~ rep- resentations and warranties of made herein on the ~~Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements~~ part of the Company~~’s officers made pursuant to the provisions hereof~~, to the performance by the Company of its ~~covenants and agreements~~ obligations to be performed hereunder prior to the Closing Date, and to the following ~~additional~~ conditions: ~~(a) On~~ a. The Company shall have furnished to the ~~Closing Date~~Initial Purchaser the opinion of , the ~~Initial Purchasers shall have received a legal opinion from Xxxxxxxx Chance US LLP, counsel for~~ Counsel of ----------------- the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company ~~and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been~~ is a corporation duly organized and ~~are~~ validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions of incorporation~~ Wisconsin and ~~are~~ has due corporate power and authority to own its properties and conduct its business as described in the Offering Memorandum, and is duly qualified to ~~transact business as foreign corporations and~~ conduct in the businesses in ---------- which it is engaged in those States, which are the only States in ~~good standing under the laws of all other jurisdictions where such counsel has been advised that the failure~~ which it is required to be so ~~qualified would amount to a material liability or disability to~~ qualified; (ii) the Company ~~and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have~~ has full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and execute the Indenture and to ~~carry out all~~ issue the ~~terms~~ Securities thereunder, and ~~provisions hereof~~ the Indenture has been duly authorized, executed and ~~thereof and of the Notes to be carried out~~ delivered by ~~it; all of the issued and outstanding shares of capital stock of each of~~ the Company~~’s significant subsidiaries~~, ~~except as otherwise set forth in the Final Memorandum, are owned beneficially~~ and constitutes a valid and legally binding instrument by the Company ~~free and clear of any perfected security interests or, to~~ enforceable against the ~~best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments~~Company in accordance with its terms; (iii) the ~~statements set forth under~~ Securities and the ~~heading “Description of Notes” in~~ Indenture have been duly authorized, executed and issued by the ~~Final Memorandum~~Company and, ~~insofar as such statements purport to summarize certain provisions~~ assuming due authentication thereof by the Trustee and upon payment for and delivery of the ~~Notes~~ Securities in accordance with the terms of this Agreement, they will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the ~~execution~~ Company has full power and ~~delivery of~~ authority to execute this Agreement ~~have been duly authorized by all necessary corporate action of the Company~~ and ~~the~~ this Agreement has been duly authorized, executed and delivered by the Company; (v) an appropriate order or orders of the Commission under the Public Utility Holding Company Act of 1935 authorizing the issuance and sale of the Securities is in effect on the Closing Date and no further approval, authorization, consent or order of any other commission or other governmental authority (other than under state securities or blue sky laws, as to which such counsel are not called upon to express an opinion) is required for the issuance and sale of the Securities; (vi) the execution and delivery of the ~~Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee)~~Indenture, the ~~Indenture will be a legal~~Securities and this Agreement, ~~valid~~ and ~~binding agreement~~ the fulfillment of the ~~Company, enforceable against the Company in accordance with its~~ terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on thereof and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized hereof by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach ~~or violation~~ of any of the terms ~~and~~ or provisions of, or constitute a default ~~under~~under any provision of, the Company's articles of incorporation or by-laws or any indenture, mortgage, deed of ~~trust, lease~~ trust or other ~~material~~ agreement or instrument, ~~known to~~ of which such ~~counsel~~counsel has knowledge, to which the Company ~~or any of its significant subsidiaries~~ is now a party ~~or by which~~ or, to the ~~Company or~~ best of such counsel's knowledge, any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or ~~other~~ governmental ~~authority~~ agency or ~~any arbitrator known to such counsel and applicable to~~ body having jurisdiction over the Company or any of its ~~significant subsidiaries~~activities or properties; (vii) the provisions of the Securities and the Indenture conform in all material respects as to legal matters to the statements concerning them contained in the Offering Memorandum under " " and -------------- " "; ---------------------------------------- (viii) the franchises, permits and licenses under which the Company operates in the States of Wisconsin, and are adequate to permit the Company -------- ----- to engage in the businesses which it presently conducts in those States and do not contain any unduly burdensome provisions; in those municipalities where the Company operates without franchises or where expired franchises have not been renewed, the lack of such franchises does not materially affect the Company's operations in such municipalities and no actions or proceedings are pending or, to such counsel's knowledge, threatened by such municipalities which would materially affect the Company's operations; (ix) it is not necessary in connection with the offer, sale and delivery of the Securities to you and (assuming such offer, sale and delivery are made in compliance with the provisions of the Purchase Agreement and in the manner contemplated by the Offering Memorandum) to each subsequent purchaser to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended; and (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which each document filed by the Company or any of its subsidiaries ~~is a party or to which~~ with the ~~property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus~~ Securities and Exchange Commission ("Commission") pursuant to the ~~Act that are not described~~ Exchange Act, and incorporated by reference in the ~~Final~~ Offering Memorandum ~~or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant~~ (except as to the ~~Act that are~~ financial statements and schedules and other financial and statistical data contained therein, as to which they need not ~~described or incorporated in~~ express any belief), at the ~~Final Memorandum. (xii) commencing~~ time it was filed with the ~~Company’s taxable year ended December 31~~Commission, ~~1998, the Company was organized and has operated~~ complied as to form in ~~conformity~~ all material respects with the ~~requirements for qualification as a real estate investment trust (“REIT”) under the Code,~~ Exchange Act and the ~~Company’s present~~ applicable instructions, rules and ~~proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act~~ regulations of the ~~Notes is required~~ Commission thereunder. Such counsel's opinion set forth in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, paragraphs (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) above may be subject to the ~~due~~ qualifications that the enforceability of the Company's obligations under the Indenture and the Securities may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditor's rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing. Such opinion shall also state that such counsel has no knowledge of any litigation, pending or threatened, which challenges the validity of the Securities, the Indenture, or this Agreement, or which seeks to enjoin the performance of the Company's obligations thereunder or which might have a material adverse effect on the business, properties or financial condition of the Company except as disclosed in or contemplated by the ~~Initial Purchasers of the agreements set forth in Section 8 hereof~~Offering Memorandum. In rendering ~~any~~ such opinion, such counsel may ~~rely,~~ rely as to factual matters ~~of fact, to the extent such counsel deems proper, on~~ upon certificates ~~of responsible officers~~ or written statements from others or other appropriate representatives of the Company or upon certificates of public officials. In such opinion, such counsel may state that while such counsel has examined the Offering Memorandum, such counsel necessarily assumes the correctness and ~~public officials and~~completeness of the statements made and information included therein and takes no responsibility therefor, except insofar as such statements relate to ~~matters involving~~ such counsel and as set forth in paragraph (vii) above. Such counsel's opinion may further state that it is addressed to the ~~application of laws of~~ Initial Purchasers and is rendered solely for their benefit and may not be relied upon in any ~~jurisdiction~~ manner by any other person (other than to ----------------------- the ~~State of New York or~~ extent stated in its opinion to the ~~United States or the General Corporation Law~~ Initial Purchasers as of the ~~State of Delaware~~Closing Date) without such counsel's prior written consent. b. The Initial Purchasers shall have received from , ~~to the extent satisfactory in form and scope to~~ counsel for the Initial Purchasers, ~~upon the~~ such ------------ opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasersopinions, dated the Closing Date, with respect to ~~certain legal matters relating to this Agreement~~ the issuance and ~~such~~ sale of the Securities, the Indenture, the Offering Memorandum (together with any supplement thereto) and other related matters as the Initial ~~Purchasers~~ Purchaser may reasonably require~~. In rendering such opinion~~, ~~Xxxxxx Xxxxxx & Xxxxxxx LLP~~ and the Company shall have ~~received and may rely upon~~ furnished to such ~~certificates and other~~ counsel such documents ~~and information~~ as ~~it may reasonably~~ they request for the purpose of enabling them to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) c. The Company shall have furnished ~~or caused to be furnished~~ to the Initial Purchasers ~~at the Closing~~ a certificate of ~~its~~ the Company, signed by the Chairman of the ~~Board~~Board or the President and the principal financial or accounting officer of the Company, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to~~ dated the ~~Initial Purchasers~~ Closing Date, to the effect that the signers of such certificate have carefully examined the Offering Memorandum, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~as if made~~ in all material respects on and as of the Closing ~~Date;~~ Date with the same effect as if made on the Closing Date and the Company has ~~performed~~ complied with all ~~covenants and~~ the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) ~~subsequent~~ since the date of the most recent financial statements included in the Offering Memorandum (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Offering Memorandum (exclusive of any supplement thereto). d. At the Closing Date, , independent ---------------- accountants shall have furnished to the ~~respective~~ Initial Purchasers a letter or letters, dated as of the Closing Date, in form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants' " comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Offering Memorandum. e. Subsequent to the date and time when this Agreement is executed and delivered by the parties hereto or, if earlier, the dates as of which information is given in the ~~Final Memorandum~~ Offering Memorandum, there shall not have been (~~exclusive~~ i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 8 or (ii) any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurancechange, or ~~from~~ any ~~labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or~~ development involving a prospective ~~materially adverse~~ change, in or affecting the ~~condition (financial~~ business or ~~otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ properties of the Company the effect of which is, in the judgment of the Initial Purchasers, so material and adverse as to make it impractical or ~~any~~ inadvisable to proceed with the offering or delivery of ~~its subsidiaries, taken~~ the Securities as ~~a whole, except in each case as described in or~~ contemplated by the ~~Final Memorandum (exclusive of any amendment or supplement thereto)~~Offering Memorandum. ~~(e) Subsequent to the execution and delivery of this Agreement and prior~~ f. Prior to the Closing Date, ~~there~~ the Company shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers may reasonably request. If any of the conditions specified in this Section 8 shall not have ~~occurred any downgrading, nor shall any notice have~~ been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 satisfactory fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers and counsel for the Initial Purchasers~~. The Company shall furnish to~~ , this Agreement and all obligations of the Initial Purchasers ~~such conformed copies~~ hereunder may be canceled at, or at any time prior to, the Closing Date by the Initial Purchasers. Notice of such ~~opinions, certificates, letters, and documents~~ cancellation shall be given to the Company in ~~such quantities as the Initial Purchasers shall reasonably request~~writing or by telephone or electronic transmittal confirmed in writing.

Appears in 1 contract

Samples: Purchase Agreement (Interstate Energy Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase and pay for Notes in an amount equal to the principal amount set forth on Schedule I hereto opposite its name shall, in its sole discretion, be subject to the satisfaction of all of the following conditions on the Closing Date: (a) The Issuer shall have good title to the Managed Containers and the other Collateral, free and clear of all Liens other than Permitted Encumbrances. (b) The Issuer shall have (i) caused all Uniform Commercial Code financing statements (or documents of similar import) required to perfect the first priority security interest of the Indenture Trustee pursuant to the Indenture in the Collateral and related items, in each case, to be duly filed in the manner required by the laws of each appropriate jurisdiction, (ii) caused all Uniform Commercial Code financing statements (or documents of similar import) required to perfect the first priority security interest of the Issuer (and the Indenture Trustee as assignee of the Issuer) pursuant to the Contribution and Sale Agreement and (iii) paid, or caused to be paid, all transfer taxes, documentary stamp taxes and filing fees incurred in connection therewith. (c) All corporate and other proceedings in connection with the transactions contemplated hereby and by the Series 2012-1 Related Documents and all documents incidental thereto shall be satisfactory in form and substance to such Initial Purchaser and its counsel, and such Initial Purchaser shall have received its Notes and any other documents incident to the transactions contemplated hereby and by the Series 2012-1 Related Documents that such Initial Purchaser or its counsel shall reasonably request. Each Initial Purchaser or its counsel shall have received on the Closing Date certified copies of all documents evidencing corporate or other organizational action taken by the Issuer, CAL and the Indenture Trustee to approve the execution and delivery of this Agreement and the other Series 2012-1 Related Documents to which they are a party and the consummation of the transactions contemplated hereby and thereby. (d) The Series 2012-1 Related Documents and the Notes ~~shall~~shall conform in all material respects to the descriptions thereof contained in the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum. Immediately prior to the sale of the Notes to the Initial Purchasers, the Notes shall have been executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, and this Agreement and each of the other Series 2012-1 Related Documents that is to be executed and delivered on or prior to the Closing Date shall have been executed and delivered by the Issuer, the Manager and all other parties thereto. The Initial Purchasers and the Indenture Trustee shall have received on the Closing Date a true and correct copy of each Series 2012-1 Related Document delivered on or prior to the Closing Date, and the Initial Purchasers or their authorized representative shall have received its original Notes. (e) Each Initial Purchaser or its counsel shall have received on the Closing Date signature and incumbency certificates executed by Authorized Signatories of the Issuer, CAL and the Indenture Trustee certifying the identities and signatures of those officers who executed each of this Agreement and the other Series 2012-1 Related Documents delivered in connection with Series 2012-1 to which the Issuer, CAL or the Indenture Trustee, as the case may be, is a party. (f) The purchase of the Notes by each Initial Purchaser shall be permitted by the laws and regulations to which such Initial Purchaser is subject. (g) Each of the Notes shall have been rated “A(sf)” by Standard & Poor’s, each such rating shall be in full force and effect and the Initial Purchasers shall have received on the Closing Date a letter from Standard & Poor’s dated on or before the Closing Date to such effect. (h) Subsequent to the respective dates as of which information is given in the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum, there shall not have occurred (i) any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or otherwise) or in the earnings, business, operations or business prospects of the Issuer, the Manager or CAL (collectively, an “Issuer Person”), whether or not arising in the ordinary course of business that, in the sole judgment of the Initial Purchasers’ , makes it impracticable or inadvisable to purchase the Notes or to proceed with the offering, sale, resale or delivery of the Notes, (ii) any other event or occurrence that could have a material adverse effect on the ability of the Issuer to perform any of its obligations under any Series 2012-1 Related Document to which it is a party or a material adverse effect on the value of the Managed Containers or the rights and remedies of the Indenture Trustee or any Series 2012-1 Noteholder under any Series 2012-1 Related Document, that, in the sole ~~discretion~~judgment of the Initial Purchasers, makes it impracticable or inadvisable to purchase the Notes or to proceed with the offering, sale, resale or delivery of the Notes, (iii) a general moratorium on commercial banking activities declared by any state of the United States or United States authorities, (iv) any downgrading in, or withdrawal of, the rating (including any “shadow rating”) accorded to securities (or the placement of any such securities on any watch or similar list with negative implications) issued by any Issuer Person or the Notes of any other Series previously issued by the Issuer by any “nationally recognized statistical rating organization,” as that term is defined for purposes of Rule 436(g) under the Act, or any public announcement that any such organization has under surveillance or review its rating (including any “shadow rating”) of the Notes of any other Series previously issued by the Issuer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of the rating), (v) any outbreak or escalation of hostilities, insurrection or armed conflict in which the United States of America is involved, any declaration of war by Congress or any other national or international calamity or emergency that in the sole judgment of the Initial Purchasers makes it impractical or inadvisable to purchase the Notes or to proceed with the offering, sale, resale or delivery of the Notes, or (vi) any material adverse change in financial, political or economic conditions having an effect on the U.S. or Western European financial markets that in the sole judgment of the Initial Purchasers makes it impractical or inadvisable to purchase the Notes or to proceed with the offering, sale, resale or delivery of the Notes. (i) Each Initial Purchaser shall have received opinions, dated the Closing Date, addressed to such Initial Purchaser and in form and substance satisfactory to its counsel, of (i) Xxxxxxx Coie LLP, U.S. counsel to the ~~accuracy~~ Issuer and the Seller, as to (A) perfection of the Indenture Trustee’s interest in the Collateral and other UCC matters, (B) “true sale” and substantive consolidation, (C) corporate, tax and other matters, and (D) securities laws matters; (ii) Xxxxxxx Xxxx & Xxxxxxx Limited, special Bermuda counsel to the Issuer, as to (A) certain matters related to priority of the Indenture Trustee’s interest in the Collateral under Bermuda law, (B) corporate, tax and other matters, and (C) securities law matters; (iii) Xxxxxx Xxxxxxx Xxxxxx, special Barbados counsel to the Seller, as to (A) substantive consolidation and choice of law, and (B) corporate and other matters relating thereto and (iv) counsel to the Indenture Trustee, as to certain matters relating to the Indenture Trustee. (j) Each Initial Purchaser shall have received a negative assurance letter, dated the Closing Date, addressed to such Initial Purchaser and in form and substance satisfactory to its counsel, of Xxxxxxx Coie LLP, U.S. counsel to the Issuer. (k) Each Initial Purchaser shall have received one or more letters from an Independent Accountant each dated the date of the Preliminary Offering Memorandum (with respect to the Preliminary Offering Memorandum) and the Closing Date (with respect to the Offering Memorandum), in form and substance satisfactory to such Initial Purchaser and its counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” with respect to information contained in the Preliminary Offering Memorandum and the Offering Memorandum. (l) The representations and warranties of the ~~Company~~ Issuer contained ~~herein~~ in this Agreement and in the other Series 2012-1 Related Documents to which it is a party shall be true and correct as of the date hereof and as of ~~each~~ the Closing Date~~, as if made on and as of each 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~~ . The Issuer shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Series 2012-1 Related Documents on or prior to ~~the following additional conditions: (a) On~~ the Closing Date; since December 31, 2011, there has been no material adverse change in the business, condition (financial or otherwise) or results of operations or business prospects of the Issuer; and no event shall have occurred and no condition shall exist that would constitute (or which with the giving of notice or passage of time or both would constitute) an Early Amortization Event or an Event of Default. (m) Subsequent to the respective dates as of which information is given in the Preliminary Offering Memorandum and the Offering Memorandum, other than as contemplated by the Preliminary Offering Memorandum and the Offering Memorandum, neither the Issuer nor any Issuer Person shall have entered into any transactions that are material to the business, condition (financial or otherwise) or results of operations or business prospects of Issuer or any Issuer Person, respectively. (n) Each Initial ~~Purchasers~~ Purchaser shall have received a ~~legal opinion from Xxxxxxxx Chance US LLP, counsel for~~ certificate of the ~~Company~~Issuer, dated the Closing Date, signed on its behalf by its President or any Vice President and its Chief Financial Officer or if such entity has none, its Treasurer, to the effect that: (a) The conditions precedent set forth in Section 8(l) have been satisfied. (i) ~~such counsel has no reason~~ Subsequent to ~~believe that (~~the respective dates as of which information is given in the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum, other than as contemplated by the Offering Memorandum, there has not occurred (A) any material adverse change, or any development involving a prospective material adverse change, in the condition (financial ~~statements~~ or otherwise) or in the earnings, business, operations or business prospects of the Issuer, whether or not arising in the ordinary course of business, or (B) any other event or occurrence that would have a material and ~~other financial information contained therein, as~~ adverse effect on the ability of the Issuer to perform any of its obligations under any Series 2012-1 Related Document to which ~~such counsel need express no opinion~~it is a party. (ii) Subsequent to the ~~Final~~ respective dates as of which information is given in the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum, other than as contemplated by the Offering Memorandum, the Issuer has not entered into any transactions that are material and adverse to the business, condition (financial or otherwise) or results of ~~its date~~ operations or business prospects of the ~~date~~ Issuer. (iii) As of ~~such opinion~~the Closing Date, ~~included or includes any~~ none of the Additional Disclosure Documents, the Preliminary Offering Memorandum and the Offering Memorandum contains an untrue statement of a material fact or ~~omitted or~~ omits to state ~~any~~ a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that this representation shall not apply to statements or omissions made in reliance upon and in conformity with the Initial Purchaser Information. (iio) Each Initial Purchaser shall have received confirmation that the ~~Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ Notes have been ~~duly organized and are validly existing as corporations in good standing under the laws~~ accepted for clearance of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has secondary market trading by The Depository Trust Company. (p) The Offering Memorandum shall have been ~~advised that the failure to be so qualified would amount to a material liability or disability~~ distributed to the ~~Company and its subsidiaries~~Initial Purchasers not later than 10:00 a.m., ~~taken as a whole;~~ New York time on October 11, 2012. (q) All conditions to the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and issuance of the Notes ~~to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise~~ set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; Indenture (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) including the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a ~~legal, valid and binding~~ control agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing DateSeries 2012-1 Series Account, in form and substance satisfactory to ~~counsel for~~ the Initial Purchasers) shall have been satisfied. The Issuer shall have delivered a certificate to that effect to the Initial Purchasers, and all opinions delivered in connection with the satisfaction of such conditions shall be addressed to the Initial Purchasers. (dr) This Agreement has not terminated pursuant to Section 12 hereof. (s) The ~~Company shall have furnished or caused to be furnished to~~ outstanding principal balance of all Series of Notes then Outstanding does not exceed the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:Asset Base. (it) A list (which may be in the ~~representations and warranties~~ form of ~~the Company in this Agreement are true and correct as if made on and~~ a data file) of Managed Containers as of the Closing Date; , which includes the Container Identification Number for each such Managed Container, shall have been delivered, in form and ~~the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior~~ substance satisfactory to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)Initial Purchasers. (eu) ~~Subsequent~~ All of the conditions precedent to the ~~execution and delivery~~ authentication of ~~this Agreement and prior to~~ the ~~Closing Date, there~~ Series 2012-1 Notes set forth in the Series 2012-1 Supplement shall ~~not have occurred any downgrading, nor shall any notice~~ have been ~~given of any intended~~ satisfied or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Actwaived. (fv) The ~~Indenture~~ Issuer shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, furnish to the Initial Purchasers and ~~counsel for~~ the ~~Initial Purchasers shall have received~~ Rating Agency (x) such ~~further certificates~~other agreements, ~~documents or other information as they may have reasonably requested from the Company. All~~ instruments, documents, opinions, certificates, letters and ~~documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are satisfactory in all material respects to~~ schedules as the Initial Purchasers or their counsel or the Rating Agency or its counsel reasonably may request and ~~counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such~~ (y) originals and conformed copies of ~~such~~ all opinions, certificates, letters, schedules, agreements, documents and ~~documents~~ instruments delivered pursuant to this Agreement in ~~such~~ the quantities as that the Initial Purchasers ~~shall~~ or such Rating Agency, as the case may be, may reasonably request.

Appears in 1 contract

Samples: Note Purchase Agreement (CAI International, Inc.)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial ~~Purchasers to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ Purchaser hereunder are subject to the ~~accuracy~~ accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of its ~~covenants and agreements hereunder~~ obligations hereunder, and to each of the following additional terms and conditions: (a) On The Initial Purchaser shall not have discovered and disclosed to the ~~Closing Date~~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 opinion of Xxxxxx & Xxxxxxx, 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) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents and the Offering Memorandum or any amendment or supplement thereto, and all other legal matters relating to the Operative Documents and the transactions contemplated thereby shall be satisfactory in all material respects to counsel to the Initial ~~Purchasers~~ Purchaser, and the Company shall have ~~received a legal opinion from~~ furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters; (c) Xxxxxxx Xxxxxxx & Xxxxxxxx ~~Chance US LLP~~shall have furnished to the Initial Purchaser its written opinion, as counsel ~~for~~ to the Company, addressed to the Initial Purchaser and dated such Delivery Date, in form and substance reasonably satisfactory to the ~~Closing Date~~Initial Purchaser, to the effect that: (i) The Company and each of the Delaware Guarantors have been duly organized and are validly existing as corporations in good standing under the laws of Delaware, and have all corporate power and authority necessary to conduct their respective businesses as described in the Offering Memorandum; (ii) All of the outstanding shares of Common Stock of the Company have been duly authorized, validly issued, fully paid and non-assessable; and all of the issued shares of capital stock of each Delaware Guarantor of the Company have been duly and validly authorized and issued, are fully paid and non-assessable (except for directors' qualifying shares) and, based solely on our examination of each such subsidiary's stock ledger and minute book, all such shares are held of record by the Company and/or a subsidiary of the Company; (iii) The Indenture has been duly authorized, executed and delivered by the Company and, assuming the Indenture is a valid and legally binding obligation of the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (iv) The Notes have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee and upon payment and delivery in accordance with the terms of the Purchase Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; and the Notes, when issued and delivered, will conform to the description thereof contained in the Offering Memorandum; (v) The Conversion Shares that are authorized on the date hereof have been duly authorized and validly reserved for issuance upon conversion of the Notes; and the Conversion Shares, when so issued and delivered upon such conversion in accordance with the terms of the Indenture, will be duly and validly authorized and issued, fully paid and nonassessable; (vi) The Guarantees have been duly authorized, executed and issued by the Delaware Guarantors and, assuming due authentication of the Notes by the Trustee, upon payment and delivery in accordance with the terms of the Purchase Agreement will constitute valid and legally binding obligations of each of the Delaware Guarantors enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) or an implied covenant of good faith and fair dealing; (vii) Assuming that the Guarantees have been duly authorized and issued by each of the Non-Delaware Guarantors and, assuming due authentication of the Notes by the Trustee, upon payment and delivery of the Notes in accordance with the terms of the Purchase Agreement, the Guarantees will constitute valid and legally binding obligations of the Non-Delaware Guarantors enforceable against the Non-Delaware Guarantors. (viii) The statements contained in the Offering Memorandum under the captions "Risk Factors-The notes are subordinated to all our existing and future senior indebtedness, which may inhibit our ability to repay you," "Risk Factors-The terms of our senior indebtedness could restrict our flexibility and limit our ability to satisfy obligations under the Notes," "Risk Factors--Future sales of common stock of L-3 Holdings in public market could lower the stock price," "Risk Factors--Delaware Law and the charter documents of L-3 Holdings may impede or discourage a takeover, which could cause the market price of its shares to decline," "Certain Relationships and Related Transactions," "Description of Other Indebtedness," and "Description of the Notes," insofar as they describe charter documents, contracts, statutes, rules and regulations and other legal matters, constitute an accurate summary thereof in all material respects; (ix) The statements made in the Offering Memorandum under the caption "Certain United States Federal Tax Considerations," insofar as they purport to constitute summaries of matters of United States federal tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects; (x) This Agreement has been duly authorized, executed and delivered by the Company and the Delaware Guarantors; and (xi) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and the Delaware Guarantors and, assuming that the Registration Rights Agreement is the valid and legally binding obligation of the Initial Purchaser and Non-Delaware Guarantors, constitutes a valid and legally binding obligation of the Company and the Guarantors, enforceable against the Company and the Guarantors in accordance with its terms. (xii) Except as specifically disclosed in the Offering Memorandum, the issue and sale of the Notes and Guarantees being delivered on such Delivery Date by the Company and the Guarantors and the compliance by the Company and the Guarantors, as applicable, with all of the provisions of this Agreement and the Indenture and the consummation of the transactions contemplated hereby and thereby will not breach or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed as an exhibit to a document incorporated by reference in the Offering Memorandum ("Exchange Act Documents") nor will such actions violate the Certificate of Incorporation or By-Laws or other organizational documents of the Company or the Delaware Guarantors, or any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law or any order known to such counsel issued pursuant to any federal or New York statute, the Delaware Limited Liability Company Act or the Delaware General Corporation Law by any court or governmental agency or body or court having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets; and no consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware Limited Liability Company Act or Delaware General Corporation Law or, to such counsel's knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware Limited Liability Company Act or the Delaware General Corporation Law is required for the issue and sale of the Notes by the Company (and the guarantees of such Notes by the Guarantors), except for such consents, approvals, authorizations, registrations or qualifications as may be required state securities or Blue Sky laws in connection with the purchase and distribution of the Notes and Guarantees by the Initial Purchaser. The opinions set forth in this paragraph are based upon our consideration of only those statutes, rules and regulations which, in such counsel's experience, are normally applicable to securities underwriting transactions. (xiii) No registration of the Notes under the Securities Act and no qualification of the Indenture under the Trust Indenture Act is required for the offer and sale of the Notes by the Company to the Initial Purchaser or the reoffer and resale of the Notes by the Initial Purchaser to the Initial Purchaser thereform solely in the manner contemplated by the Offering Memorandum, the Purchase Agreement and the Indenture. In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States and the laws of the State of New York and the Delaware General Corporation Law. Such counsel shall also have furnished to the Initial Purchaser a written statement, addressed to the Initial Purchaser and dated the Delivery Date. Such counsel has not independently verified the accuracy, completeness or fairness of the statements made or included in the Offering Memorandum and take no responsibility therefor, except as and to the extent set forth in paragraphs (viii) and (ix) above. In the course of the preparation by the Company of the Offering Memorandum (excluding the Exchange Act Documents), such counsel participated in conferences with certain officers and employees of the Company, with representatives of PricewaterhouseCoopers, LLP and with counsel to the Company. Based upon such counsel's examination of the Offering Memorandum (including the Exchange Act Documents), such counsel's investigations made in connection with the preparation of the Offering Memorandum (excluding the Exchange Act Documents) and such counsel's participation in the conferences referred to above, such counsel has no reason to believe that ~~(other than~~ the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final~~ Offering Memorandum, ~~as of its date or~~ including the ~~date of such opinion, included or includes~~ Exchange Act Documents contains any untrue statement of a material fact ~~or omitted~~ or omits 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~~. (ii) the Company and~~ , except that in each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where case such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for need not express belief with respect to ~~such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to~~ the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium financial statements or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act financial data contained in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or ~~any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or~~ incorporated ~~in the Final Memorandum~~therein by reference. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.

Appears in 1 contract

Samples: Purchase Agreement (L 3 Communications Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase and pay for the ~~Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ Securities are subject to the ~~accuracy~~ continued accuracy, as of the Closing Time, of the representations and warranties of the ~~Company contained~~ Issuers herein ~~as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date~~contained, to the accuracy of the statements of the ~~Company’s~~ Issuers and officers of the Issuers made in any certificate pursuant to the provisions hereof, to the performance by the ~~Company~~ Issuers of ~~its covenants and agreements hereunder~~ their respective obligations hereunder, and to the following ~~additional~~ further conditions: (a) On At the Closing ~~Date~~Time, the Initial Purchasers shall have received ~~a legal opinion from Xxxxxxxx Chance US~~ the opinions of each of Briax X. Xxxxxx, Xxecutive Vice President of Law and General Counsel of the Company, Sommxx & Xarnxxx, XX, and Alstxx & Bird LLP, each dated as of the Closing Time, which, collectively, are in the form set forth below and otherwise reasonably satisfactory to the Initial Purchasers and counsel for the ~~Company, dated the Closing Date~~Initial Purchasers, to the effect that: (i1) The Company and each of the Guarantors has been duly organized or incorporated, as the case may be, and is validly existing under the laws of its respective state of incorporation, with corporate power and authority to own, lease and operate its assets and properties and conduct its business as described in the Offering Memorandum and to enter into and perform its obligations under this Agreement and each of the other Operative Documents; the Company and each of the Guarantors is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which it conducts its business (based on certificates of officers of the Company) and such ~~counsel~~ qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; (2) Each of the Issuers has ~~no reason~~ the requisite corporate or partnership power and authority to ~~believe that~~ own, lease and operate its assets and properties and to conduct its business as described in the Offering Memorandum. Each of the Issuers has the requisite corporate or partnership power and authority to execute, deliver and perform its obligations under the Operative Documents to which it is or is to be a party. Each of the Operative Documents has been duly authorized by each Issuer which is a party thereto; (3) No consent, waiver, approval, authorization, license, qualification or order of or filing or registration with, any court or governmental or regulatory agency or body is required for the execution and delivery by the Issuers of this Agreement, the Registration Rights Agreement or the Indenture or for the issue and sale of the Securities, the Exchange Securities or the Private Exchange Securities (other than with respect to the ~~financial statements~~ delivery in book-entry form), if any, or the issuance of the Guarantees by the Guarantors, the performance by the Issuers of their obligations under the Operative Documents, or for the consummation of any of the transactions contemplated hereby or thereby, except, such as may be required (A) in connection with the registration under the Act of the Exchange Securities or the Private Exchange Securities, if any, pursuant to the Registration Rights Agreement (including any filing with the NASD), (B) in connection with the registration under the Act of the Exchange Securities or the Private Exchange Securities pursuant to the Registration Rights Agreement, the qualification of the Indenture under the Trust Indenture Act and ~~other financial information contained therein,~~ (C) under the "blue sky" laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Initial Purchasers (as to which such counsel need express no opinion); (4) The issuance, sale and delivery of the Securities, the Exchange Securities and the Private Exchange Securities (other than with respect to the delivery in book-entry form), if any, the execution, delivery and performance by the Issuers of this Agreement, the Registration Rights Agreement and the Indenture (in each case assuming due authorization and execution by each party other than the Company), and the consummation by the Issuers of the transactions contemplated hereby and thereby and the compliance by the Issuers with the terms of the foregoing do not, and, at the Closing Time, will not conflict with or constitute or result in a breach or violation by the Company or any of the Guarantors of (A) any provision of the Certificate of Incorporation or By-laws of the Company or such Guarantors, (B) any of the terms or provisions of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) by the Issuers, or give rise to any right to accelerate the maturity or require the prepayment of any indebtedness under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Issuers under any material Contract known to such counsel or (C) any law, statute, rule, or regulation or any order, decree or judgment known to such counsel to be applicable to the Issuers, of any court or governmental or regulatory agency or body or arbitrator known to such counsel to have jurisdiction over the Issuers or any of their respective properties or assets; (5) The Purchase Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors; (6) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and each of the Guarantors and assuming the due execution and delivery thereof by the Initial Purchasers, constitutes a valid and binding obligation of each of the Issuers; (7) The Indenture has been duly authorized, executed and delivered by the Company and each of the Guarantors and, assuming the due execution and delivery thereof by the Trustee, constitutes a valid and binding obligation of each of the Issuers; (8) The Notes have been duly authorized by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered and paid for in accordance with the terms of this Agreement, and the Exchange Securities and the Private Exchange Securities (other than with respect to the delivery in book-entry form), if any, when executed, authenticated and delivered in exchange for the Securities in accordance with the terms of the Registration Rights Agreement, will be entitled to the benefits of the Indenture and will constitute valid and binding obligations of the Company; (9) the ~~Final~~ Guarantees have been duly authorized by the Guarantors and when executed and delivered by the Guarantors in accordance with the provisions of the Indenture (assuming the due authentication of the Notes by the Trustee) will be entitled to the benefits of the Indenture and will be valid and binding obligations of each of the Guarantors; (10) To the knowledge of such counsel, other than as described in the Offering Memorandum, no legal, regulatory or governmental proceedings are pending or threatened to which the Company or any of the Subsidiaries is a party or to which the property or assets of the Company or any of the Subsidiaries are subject which in the judgment of the Company could reasonably be expected to have a Material Adverse Effect; (11) The descriptions of the Notes, the Guarantees, the Indenture and the Registration Rights Agreement contained in the Offering Memorandum fairly describe or summarize such documents in all material respects; (12) Neither the Company nor any of the Subsidiaries is in violation of its respective Organizational Documents; provided, that with respect to the business purpose clauses of the charter of the Company and its Subsidiaries, such opinion may be limited to the knowledge of such counsel after due inquiry; to the knowledge of such counsel, no default by the Company or any of the Guarantors exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any Contract; and to the knowledge of such counsel, none of the Issuers is in breach or violation of any law, statute, rule or regulation, or any judgment, decree or order or governmental or regulatory agency or other body having jurisdiction over the Company or any of the Guarantors or any of their respective properties or assets; (13) Assuming that the representations and warranties of the Initial Purchasers contained in Section 4 of this Agreement are true, correct and complete, and assuming compliance by the Initial Purchasers with their covenants in Section 4 hereof, and assuming that the representations and warranties contained in the Transferee Letter (substantially in the form of Appendix A to the Offering Memorandum) completed by Accredited Investors purchasing Securities from the Initial Purchasers are true and correct as of the Closing Time, and assuming compliance by such Accredited Investors with the agreements in the Transferee Letter, it is not necessary in connection with the offer, sale and delivery of the Securities to the Initial Purchasers under, or in connection with the initial resale of such Securities by the Initial Purchasers in accordance with, this Agreement to register the Securities under the Act or to qualify the Indenture under the Trust Indenture Act; (14) None of the Issuers is an "investment company" or a company "controlled by" or required to register as an investment company as such terms are defined in the Investment Company Act of 1940, as amended, and the rules and regulations thereunder; (15) When the Securities are issued and delivered pursuant to this Agreement, such Securities will not be of the same class (within the meaning of Rule 144A) as securities of any of the Issuers which are listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system; and (16) Neither the consummation of the transactions contemplated hereby nor the sale, issuance, execution or delivery of the Securities will violate Regulation G, T, U or X of the Board of Governors of the Federal Reserve System. In addition such counsel shall state that such counsel has participated in conferences with representatives of the Initial Purchasers, officers and other representatives of the Issuers and representatives of the independent certified accountants of the Issuers, at which conferences the contents of the Offering Memorandum and the business and affairs of the Company and its ~~date~~ Subsidiaries were discussed, and although such counsel has not verified and does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except and only to the extent set forth in subclause (11) above), on the basis of the foregoing, no facts have come to the attention of such counsel which lead such counsel to believe that the Offering Memorandum at the date thereof or as of ~~such opinion~~the Closing Time, ~~included~~ contained or ~~includes any~~ contains an untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading.~~ misleading (iiit being understood that such counsel need not express any comment with respect to the financial statements, including the notes thereto and supporting schedules, or any other financial data set forth or referred to in the Offering Memorandum). In rendering such opinions, such counsel (A) need not express any opinion with regard to the ~~Company~~ application of laws of any jurisdiction other than the Federal law of the United States, the General Corporation Law of the State of Delaware and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of ~~their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under~~ the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of ~~America~~ Georgia and ~~other U.S. jurisdictions in connection with the offer~~ Indiana and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent ~~such counsel deems proper,~~ they deem proper on representations or certificates of responsible officers of the ~~Company~~ Issuers and certificates of public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasersofficials. References to the ~~Final~~ Offering Memorandum in this subsection (a) ~~shall~~ include any ~~amendment~~ supplements thereto at or ~~supplement thereto prepared in accordance with the provisions of this Agreement at~~ prior to the Closing ~~Date~~Time. (b) The Initial Purchasers shall have received ~~a legal opinion from Xxxxxx~~ the opinion, dated as of the Closing Time, of Cahixx Xxxxxx & ~~Xxxxxxx LLP~~Xeinxxx, ~~counsel~~ xxunsel for the Initial Purchasers, ~~dated the Closing Date,~~ with respect to certain ~~legal~~ matters ~~relating to~~ set forth in clauses (6), (7), (8), (9), (11) and (13) of subsection (a) of this ~~Agreement~~ Section 7; provided, however, that for purposes of the opinions expressed in clauses (6) through (9), such counsel shall additionally opine on the enforcement of such documents and ~~such other related matters as the Initial Purchasers may reasonably require~~agreements. In rendering such ~~opinion~~opinions, ~~Xxxxxx Xxxxxx & Xxxxxxx LLP~~ such counsel (A) need not express any opinion with regard to the application of laws of any jurisdiction other than the Federal laws of the United States, the General Corporation Law of the State of Delaware and the laws of the State of New York and (B) may rely, as to matters of fact, to the extent they deem proper on representations or certificates of responsible officers of the Company and certificates of public officials. In addition, such counsel shall ~~have received and may rely upon~~ additionally state that such ~~certificates~~ counsel has participated in conferences with officers and other ~~documents~~ representatives of the Issuers and ~~information as it may reasonably request to~~ representatives of the independent accountants for the Issuers at which conferences the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not verified and does not pass upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum, on the basis of the foregoing (relying as to materiality to the extent such ~~matters~~counsel deems appropriate upon the representations and opinions of officers and other representatives of the Issuers), no facts have come to the attention of such counsel which lead such counsel to believe that the Offering Memorandum, at the date thereof or as of the Closing Time, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no comment with respect to the financial statements, including the notes thereto, or any other financial or statistical data found in or derived from the internal accounting or other records of the Company and its subsidiaries set forth or referred to in the Offering Memorandum). (c) The ~~Initial Purchasers~~ following conditions contained in clauses (i) and (ii) of this subsection (c) shall have ~~received from PricewaterhouseCoopers LLP a letter or letters dated, respectively,~~ been satisfied at and as of the ~~date hereof~~ Closing Time and the ~~Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The~~ Company shall have ~~furnished or caused to be~~ furnished to the Initial Purchasers at a certificate, signed by the ~~Closing a certificate of its~~ Chairman of the ~~Board, its~~ Board or the President or ~~its Chief Executive Officer and its Chief Financial Officer satisfactory to~~ the ~~Initial Purchasers~~ principal financial or accounting officer of the Company, dated as of the Closing Time, to the effect that the signer of such certificate has carefully examined the Offering Memorandum, any amendment or supplement to the Offering Memorandum, and this Agreement and that: (i) the representations and warranties of the ~~Company~~ Issuers in this Agreement are true and correct ~~as if made~~ in all material respects on and as of the Closing ~~Date;~~ Time with the same effect as if made at the Closing Time and the ~~Company has performed~~ Issuers have complied with all ~~covenants and~~ the agreements and satisfied all the conditions under this Agreement on its part to be performed or satisfied in all material respects at or prior to the Closing ~~Date; and~~Time; (ii) ~~subsequent to~~ since the ~~respective dates as~~ date of ~~which information is given~~ the most recent financial statements included in the ~~Final~~ Offering Memorandum (exclusive of any amendment or supplement thereto), ~~neither the Company nor any of its subsidiaries~~ there has ~~sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity~~been no Material Adverse Change, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, arising in the ~~condition (financial or otherwise)~~ordinary course of business. As used in this subparagraph, ~~management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ the term "Offering Memorandum" means the Offering Memorandum in the form first used to confirm sales of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.Securities; and

Appears in 1 contract

Samples: Purchase Agreement (McRaes Stores Partnership)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, be subject, in the Initial ~~Purchasers’~~ Purchaser’s sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received a legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the ~~Final~~ Offering Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the ~~Final~~ Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the ~~Final~~ Offering Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the ~~Final~~ Offering Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the ~~Final~~ Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial ~~Purchasers~~Purchaser), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial ~~Purchasers~~ Purchaser by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial ~~Purchasers~~ Purchaser and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the ~~Final~~ Offering Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the ~~Final~~ Offering Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial ~~Purchasers~~ Purchaser as contemplated by this Agreement and the ~~Final~~ Offering Memorandum or in connection with the initial resale of the Notes by the Initial ~~Purchasers~~ Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial ~~Purchasers’~~ Purchaser’s representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial ~~Purchasers~~ Purchaser and the initial resale thereof and (iii) the due performance by the Initial ~~Purchasers~~ Purchaser of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial ~~Purchasers~~Purchaser, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial ~~Purchasers~~ Purchaser and counsel for the Initial ~~Purchasers~~ Purchaser covering matters reasonably requested by the Initial ~~Purchasers~~Purchaser. References to the ~~Final~~ Offering Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial ~~Purchasers~~ Purchaser shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial ~~Purchasers~~Purchaser, dated the Closing Date, 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, 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. (c) The Initial ~~Purchasers~~ Purchaser shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial ~~Purchasers~~Purchaser. (d) The Company shall have furnished or caused to be furnished to the Initial ~~Purchasers~~ Purchaser at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial ~~Purchasers~~ Purchaser to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the ~~Final~~ Offering Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the ~~Final~~ Offering Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial ~~Purchasers~~ 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. (h) On or before the Closing Date, the Initial ~~Purchasers~~ Purchaser and counsel for the Initial ~~Purchasers~~ Purchaser 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 satisfactory in all material respects to the Initial ~~Purchasers~~ Purchaser and counsel for the Initial ~~Purchasers~~Purchaser. The Company shall furnish to the Initial ~~Purchasers~~ Purchaser such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial ~~Purchasers~~ Purchaser shall reasonably request.

Appears in 1 contract

Samples: Purchase Agreement (Istar Financial Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes ~~shall,~~ on the Closing Date will be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties on the part of the ~~Company contained herein as of the date hereof~~ Issuer and ~~as of each Closing Date~~Horizon herein, ~~as if made on and as of each Closing Date, to~~ the accuracy of the statements of officers of the ~~Company’s officers~~ Issuer made pursuant to the provisions hereof, to the performance by each of Horizon and the ~~Company~~ Issuer of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) The Initial Purchaser shall have received a letter or letters of RSM US LLP in form and substance satisfactory to the Initial Purchaser, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters, with respect to certain financial or statistical information set forth in the Offering Document. (b) Subsequent to the execution and delivery of this Agreement, the Initial Purchaser may terminate this Agreement by notice given by the Initial Purchaser to the Issuer, if after the execution and delivery of this Agreement and prior to the Closing Date: (i) a change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable judgment of the Initial Purchaser, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Notes, whether in the primary market or in respect of dealings in the secondary market, (ii) trading generally shall have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange or the NASDAQ National Market, or there shall have been any setting of minimum prices for trading on any such exchange, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any general moratorium on commercial banking activities shall have been declared by Federal or New York State authorities, (v) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis or natural disaster or a declaration by the United States of a national emergency or war or any other major act of terrorism involving the United States, or any other substantial national or international calamity, emergency or crisis, the effect of which is material and adverse, and which singly or together with any other event specified in this subsection (b), makes it, in the judgment of the Initial Purchaser, impracticable or inadvisable to proceed with the offer, sale or delivery of the Notes on the terms and in the manner contemplated in the Time of Sale Information or the PPM, or (vi) any change, or any development that could reasonably be expected to cause a change, affecting the business or properties of the Issuer or Horizon occurs that, in the judgment of the Initial Purchaser, is material and adverse, and which singly or together with any other event specified in this subsection (b), makes it, in the judgment of the Initial Purchaser, impracticable or inadvisable to proceed with the offer, sale or delivery of the Notes on the terms and in the manner contemplated in the Time of Sale Information or the PPM. Upon such notice being given, subject to Section 9 hereof, the parties to this Agreement shall be released and discharged from their respective obligations under this Agreement. (c) The Notes shall have been duly authorized, executed, authenticated, delivered and issued, and each of 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 all conditions precedent contained in the Transaction Documents shall have been satisfied or waived. (d) On or before the Closing Date, all actions required to be taken in order to perfect: (i) the Issuer's ownership and security interest in the Initial ~~Purchasers~~ Loans and related assets and (ii) the Indenture Trustee's first priority, perfected security interest in the Trust Estate shall have been taken. The Initial Purchaser shall have received a evidence reasonably satisfactory to the Initial Purchaser that UCC financing statements in the State of Delaware with respect to (1) the sale of the Initial Loans and related assets from Horizon to the Issuer and (2) the pledge of the Trust Estate from the Issuer to the Indenture Trustee are being filed (or will be sent for filing within three Business Days of the Closing Date). (e) The Initial Purchaser shall have received legal ~~opinion from Xxxxxxxx Chance US~~ opinions of Dechert LLP, counsel ~~for~~ to the ~~Company~~Horizon Entities, (i) with respect to certain corporate, enforceability, federal tax, security interest, securities law and investment company matters, in form and substance satisfactory to the Initial Purchaser, (ii) with respect to certain “true sale” issues in form and substance satisfactory to the Initial Purchaser and (iii) with respect to certain “non-consolidation” issues in form and substance satisfactory to the Initial Purchaser. Dechert LLP shall also provide a customary “negative assurances” letter, dated as of the Closing Date, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to its counsel, containing customary exceptions and limitations, to the effect ~~that: (i)~~ that such counsel has no reason to believe that ~~(other than~~ the ~~financial statements and other financial information contained therein~~Preliminary PPM, ~~as to which such counsel need express no opinion)~~ at the ~~Final Memorandum~~Time of Sale, or the PPM, as of ~~its date or~~ the date thereof and as of ~~such opinion~~the Closing Date, included ~~or includes~~ any untrue statement of a material fact or omitted ~~or omits~~ 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~~misleading (in each case, other than the financial statements and other information of a statistical, accounting or financial nature included in the Preliminary PPM and PPM). (iii) ~~the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ The Initial Purchaser shall have ~~been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified~~ received a letter from Dechert LLP that it has no reason to ~~transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised~~ believe that the ~~failure to be so qualified would amount to a material liability or disability to~~ Preliminary PPM, together with the ~~Company and its subsidiaries~~Pricing Information, ~~taken~~ as ~~a whole;~~ of the ~~Company and each~~ Time of ~~its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum~~Sale, and the ~~Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and~~ PPM as of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery date thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact necessary to make the ~~Notes will have been duly executed and delivered by the Company and~~statements therein not misleading, ~~assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject,~~ it being understood that such counsel need express no opinion as to ~~enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium~~ the financial statements or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act financial data contained in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect)Offering Document. (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial ~~Purchasers~~ Purchaser shall have received a ~~legal opinion~~ letter from ~~Xxxxxx Xxxxxx~~ Kxxxxx Xxxxx Xxxxxxxx & ~~Xxxxxxx LLP~~Fxxxxxx LLP that it has no reason to believe that the Preliminary PPM, ~~counsel for~~ together with the ~~Initial Purchasers~~Pricing Information, ~~dated~~ as of the ~~Closing Date~~Time of Sale, ~~with respect to certain legal matters relating to this Agreement~~ and ~~such other related matters~~ the PPM as the Initial Purchasers may reasonably require. In rendering such opinion, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, of the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct as if made on thereof and as of the Closing Date~~; and~~ , contained any untrue statement of a material fact or omitted to state any material fact necessary to make the ~~Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior~~ statements therein not misleading, it being understood that such counsel need express no opinion as to the ~~Closing Date; and (ii) subsequent to the respective dates as of which information is given~~ financial statements or other financial data contained in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties theretoOffering Document. (g) ~~On the Closing Date, the~~ The Initial ~~Purchasers~~ Purchaser shall have received from each party to the ~~Registration Rights Agreement executed by the Company and~~ Transaction Documents such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, 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 opinionsinformation, certificates, ~~letters~~ opinions and documents ~~delivered pursuant to~~ as the Initial Purchaser may reasonably have requested and all proceedings in connection with the transactions contemplated by this Agreement ~~will comply with the provisions hereof only if they are satisfactory~~ and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Initial ~~Purchasers~~ Purchaser. (i) The Notes shall have received a rating of at least "A+" from the Rating Agency, and ~~counsel for~~ (ii) such rating shall not have been rescinded, and no public announcement shall have been made by (x) the Rating Agency that the rating of such Notes has been placed under review or (y) by a non-hired rating agency that it has issued an unsolicited lower rating on such Notes. (i) At least two business days prior to the date hereof, each Horizon Entity and any affiliate thereof to which the Beneficial Ownership Regulation is applicable with respect to the transactions undertaken pursuant to the Transaction Documents, to the extent that any such entity qualifies as a "legal entity customer" under the Beneficial Ownership Regulation shall (i) deliver, or ensure that it has delivered, to each Initial Purchaser that so requests, a Beneficial Ownership Certification in relation to itself, or (ii) deliver to each Initial Purchaser an updated Beneficial Ownership Certification if any previously delivered Beneficial Ownership Certification ceases to be true and correct in all respects.. The Initial Purchaser may in its sole discretion waive compliance with any conditions to the obligations of 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 shall reasonably requestPurchaser hereunder.

Appears in 1 contract

Samples: Note Purchase Agreement (Horizon Technology Finance Corp)

Conditions of the Initial Purchasers’ Obligations. The obligation of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase Securities on the Closing Date and ~~pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained~~ each Option Closing Date as provided herein ~~as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof,~~ is subject to the performance by the Company (and the Parent, solely for purposes of Section 5(k) hereof) of its covenants and ~~agreements~~ other obligations hereunder and to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements The representations and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action warranties of the Company contained herein shall be true and correct on the ~~Agreement has been duly executed~~ date hereof and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date and each Option Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers statements of the Company and ~~public officials and,~~ its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as ~~to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law~~ of the ~~State of Delaware, to the extent satisfactory in form~~ Closing Date and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the each Option Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, ~~there~~ (i) no downgrading 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~~ assigned to the Securities or any other debt securities or preferred stock issued or guaranteed by the Company or any of ~~the Company’s securities~~ its Subsidiaries by any “nationally recognized statistical rating organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Company or any of its Subsidiaries (other than an announcement with positive implications of a possible upgrading). (c) Subsequent to the execution and delivery of this Agreement, no event or condition of a type described in Section 1(e) hereof shall have occurred or shall exist, which event or condition is not described in the each of the Time of Sale Information (excluding any amendment or supplement thereto) and the Offering Memorandum (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Initial Purchasers makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Offering Memorandum. (d) The Initial Purchasers shall have received on and as of the Closing Date and each Option Closing Date a certificate of an executive officer of the Company who has specific knowledge of the Company’s financial matters and is satisfactory to the Initial Purchasers (i) confirming that such officer has carefully reviewed the Time of Sale Information and the Offering Memorandum and, to the best knowledge of such officer, the representations and warranties of the Company in this Agreement are true and correct, (ii) and confirming 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 the Closing Date and each Option Closing Date and (iii) confirming no event having the effect set forth in paragraphs (b) and (c) above shall have occurred. (e) On the date of this Agreement and on the Closing Date and each Option Closing Date, PricewaterhouseCoopers LLP shall have furnished to the Initial Purchasers, at the request of the Company, letters, dated the respective dates of delivery thereof and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, 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 each of the Time of Sale Information and the Offering Memorandum; provided that the letter delivered on the Closing Date and each Option Closing Date shall use a “cut-off” date no more than three business days prior to the Closing Date or such Option Closing Date, as the case may be. (f) Xxxxxxx Procter LLP, counsel for the Company, shall have furnished to the Initial Purchasers, at the request of the Company, their written opinion, dated the Closing Date and each Option Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Annex C hereto. (g) Xxxxx Xxxx, Esq., General Counsel for the Company, shall have furnished to the Initial Purchasers, at the request of the Company, his written opinion, dated the Closing Date and each Option Closing Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Annex D hereto. (h) The ~~Indenture~~ Initial Purchasers shall have received on and as of the Closing Date and each Option Closing Date opinions of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Initial Purchasers, with respect to such matters as the Initial Purchasers may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters. (i) 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 and each Option 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 and each Option Closing Date, prevent the issuance or sale of the Securities. (j) The Initial Purchasers shall have received on and as of the Closing Date and each Option Closing Date satisfactory evidence of the good standing of the Company and each of the Subsidiaries, in their respective jurisdictions 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. (k) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement that shall have been executed and delivered by ~~all~~ a duly authorized officer of the ~~parties thereto~~Company and the Parent. (gl) On The Securities shall have been approved by the ~~Closing Date~~NASD for trading in the PORTAL Market and shall be eligible for clearance and settlement through DTC. (m) The “lock-up” agreements, dated the date hereof, each substantially in the form of Exhibit B hereto, of the top five executive officers and the inside directors of the Company who are identified on Exhibit B-1 relating to sales and certain other dispositions of shares of Common Stock or certain other securities, shall have been delivered to the Initial Purchasers ~~shall have received~~ on or before the ~~Registration Rights Agreement executed by the Company~~ Closing Date and ~~such agreement~~ shall be in full force and effect ~~at all times from and after~~ on the Closing ~~Date.~~Date and each Option Closing date; (hn) On or ~~before~~ prior to the Closing Date and each Option Closing Date, the ~~Initial Purchasers and counsel for~~ Company shall have furnished to the Initial Purchasers ~~shall have received~~ such further ~~certificates~~certificates and documents as the Initial Purchasers may reasonably require for the purpose of consummating the transactions contemplated hereby. (o) During the period beginning on the date hereof and continuing to and including the Closing Date and each Option Closing Date, ~~documents~~ not to offer, sell or otherwise dispose of any debt securities of the Company or warrants to purchase or otherwise acquire debt securities of the Company substantially similar to the securities (other ~~information as they may have reasonably requested from~~ than (i) the ~~Company~~Securities, (ii) commercial paper issued in the ordinary course of business or (iii) securities or warrants permitted with the prior written consent of the Initial Purchasers). All opinions, ~~certificates~~letters, ~~letters~~ certificates and ~~documents delivered pursuant to~~ evidence mentioned above or elsewhere in this Agreement ~~will comply~~ shall be deemed to be in compliance with the provisions hereof only if they are in form and substance 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 shall reasonably request~~.

Appears in 1 contract

Samples: Purchase Agreement (Boston Properties LTD Partnership)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall,~~ hereunder shall be subject, in ~~the Initial Purchasers’ sole~~ their discretion, to the ~~accuracy of the~~ condition that all representations and warranties and other statements of the Company ~~contained~~ herein ~~as of the date hereof~~ are, at and as of each ~~Closing Date~~Time of Delivery, ~~as if made on~~ true and ~~as of each Closing Date~~correct, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by~~ condition that the Company shall have performed all of its ~~covenants~~ obligations hereunder theretofore to be performed, and ~~agreements hereunder and to~~ the following additional conditions: (a) ~~On the Closing Date, the Initial Purchasers shall have received a legal opinion from~~ Xxxxx Xxxx & Xxxxxxxx Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, shall have furnished to you such opinion or opinions, dated ~~the Closing Date~~such Time of Delivery, with respect to ~~certain legal~~ such matters ~~relating to this Agreement~~ as you may reasonably request, and such ~~other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx LLP~~ counsel shall have received ~~and may rely upon~~ such ~~certificates and other documents~~ papers and information as it they may reasonably request to enable them to pass upon such matters.; (b) DLA Piper LLP (US), counsel for the Company, and Xxxxxx X. Xx, General Counsel of the Company, shall have furnished to you their written opinions, dated such Time of Delivery, in form and substance agreed to by the parties prior to the date hereof; (c) ~~The Initial Purchasers~~ On the date of the Offering Circular concurrently with the execution of this Agreement and also at each Time of Delivery, Ernst & Young LLP shall have ~~received from PricewaterhouseCoopers LLP~~ furnished to you a letter or ~~letters dated~~letters, ~~respectively,~~ dated the ~~date hereof and the Closing Date~~respective dates of delivery thereof, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that:you; (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither Neither the Company nor any of its subsidiaries ~~has~~ shall have sustained since the date of the latest audited financial statements included in the Pricing Circular any ~~material~~ loss or interference with ~~their respective businesses or properties~~ its business from fire, ~~flood~~explosion, ~~hurricane, accident~~ flood or other calamity, whether or not covered by insurance, or from any labor dispute or ~~any legal~~ court or governmental ~~proceeding~~action, order or decree, otherwise than as set forth or contemplated in the Pricing Circular, and (ii) since the respective dates as of which information is given in the Pricing Circular there ~~has~~ shall not have been any ~~materially adverse change (including, without limitation, a~~ change in ~~management~~ the capital stock or ~~control)~~long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective ~~materially adverse~~ change, in or affecting the ~~condition (financial or otherwise)~~general affairs, management, ~~earnings, properties, business affairs or business prospects~~financial position, stockholders’ ~~equity, net worth~~ equity or results of operations of the Company ~~or any of~~ and its subsidiaries, ~~taken~~ otherwise than as ~~a whole~~set forth or contemplated in the Pricing Circular, ~~except~~ the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in this Agreement and in each ~~case as described in or contemplated by~~ of the ~~Final Memorandum (exclusive of any amendment or supplement thereto).~~Pricing Disclosure Package and the Offering Circular; (e) ~~Subsequent to~~ On or after the ~~execution and delivery of this Agreement and prior to the Closing Date, there~~ Applicable Time (i) no downgrading shall ~~not~~ have occurred ~~any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change,~~ in the rating accorded ~~any of~~ the Company’s debt securities by any “nationally recognized statistical rating organization”, as ~~such~~ that term is defined ~~for purposes of Rule 436(g)(2~~by the Commission in Section 3(a)(62) under the Exchange Act., and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities; (f) ~~The Indenture~~ On or after the Applicable Time there shall not have ~~been executed~~ occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on NASDAQ; (ii) a suspension or material limitation in trading in the Company’s securities on NASDAQ; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and ~~delivered by all~~ in the ~~parties thereto.~~manner contemplated in the Pricing Disclosure Package and the Offering Circular; (g) On A number of shares of Common Stock equal to the ~~Closing Date~~Maximum Number of Underlying Securities shall have been duly listed, subject to notice of issuance, on the NASDAQ; (h) The Company shall have obtained and delivered to the Initial Purchasers executed copies of an agreement from each of the Company’s directors and executive officers listed in Schedule IV hereto, substantially to the effect set forth in Exhibit A hereof; (i) The Initial Purchasers shall have received an executed original copy of the ~~Registration Rights Agreement executed~~ Indenture; (j) The Securities shall be eligible for clearance and settlement through the facilities of DTC; and (k) The Company shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company ~~and~~ of all of its obligations hereunder to be performed at or prior to such ~~agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date~~Time of Delivery, ~~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 satisfactory in all material respects to the ~~Initial Purchasers~~ matters set forth in subsection (e) of this Section and ~~counsel for the Initial Purchasers. The Company shall furnish~~ as to ~~the Initial Purchasers~~ such ~~conformed copies of such opinions, certificates, letters, and documents in such quantities~~ other matters as ~~the Initial Purchasers shall~~ you may reasonably request.

Appears in 1 contract

Samples: Purchase Agreement (Silicon Laboratories Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ respective obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and on the Closing Date (as if made again on and as of such date), of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of ~~its covenants and agreements hereunder~~ their respective obligations hereunder, and to each of the following additional terms and conditions: (a) ~~On the Closing Date, the Initial Purchasers~~ The Offering Memorandum shall have ~~received a legal opinion from Xxxxxxxx Chance US LLP~~been printed and copies made available to you not later than 6:00 p.m., ~~counsel for~~ New York City time, on the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or Business Day following the date of this Agreement, or at such ~~opinion, included~~ later date and time as you may approve in writing. (b) No Initial Purchaser shall have discovered and disclosed to the Company on or ~~includes~~ prior to such Closing Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of Lathxx & Xatkxxx, xxunsel for the Initial Purchasers, is material ~~fact or omitted~~ or omits to state ~~any~~ a fact which, in the opinion of such counsel, is material ~~fact~~ and is required to be stated therein or is necessary in order to make the statements made therein, in ~~the~~ light of the circumstances under which they were made, not misleading. (iic) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement and the Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Initial Purchasers, and the Company and the Guarantors shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) Portxx & Xedgxx, X.L.P. shall have furnished to the Initial Purchasers its written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated such Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that: (i) The Company and each of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act)~~ Guarantors have been duly ~~organized~~ incorporated and are validly existing as corporations in good standing under the laws of their respective jurisdictions of ~~incorporation and~~ incorporation, are duly qualified to ~~transact~~ do business ~~as foreign corporations~~ and are in good standing ~~under~~ as foreign corporations in each jurisdiction in which their respective ownership or lease of property or the ~~laws~~ conduct of ~~all other jurisdictions~~ their respective businesses requires such qualification, except where ~~such counsel has been advised that~~ the failure to so register or qualify or to be ~~so qualified~~ in good standing would ~~amount to~~ not have a ~~material liability or disability to the Company~~ Material Adverse Effect, and ~~its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries~~ have ~~full~~ all power and authority necessary to ~~own, lease and operate~~ own or hold their respective properties and ~~assets and~~ conduct ~~their respective~~ the businesses ~~as described~~ in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, which they are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentsengaged; (~~iii~~ii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the The Purchase Agreement has been duly ~~executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and~~authorized, ~~when duly~~ executed and delivered by the Company ~~(assuming the due authorization, execution~~ and ~~delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement~~ each of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on Guarantors and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers~~’ representations in Section 8~~ ) constitutes a valid and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers legally binding agreement of the Company and ~~public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law~~ each of the ~~State~~ Guarantors, enforceable against each of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared them in accordance with ~~the provisions of this Agreement at the Closing Date.~~its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and by general equitable principles; (biii) The ~~Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP~~Warrant Agreement has been duly authorized, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.delivered

Appears in 1 contract

Samples: Purchase Agreement (Key Energy Services Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase and pay for the Firm Notes ~~shall,~~ shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties made herein on the part of the Company, to the performance by the Company of its obligations to be performed hereunder prior to the Firm Closing Date, and to the following conditions: (a) On the Firm Closing Date, the Initial Purchasers shall have received from Eric H. Peterson, Executive Vice Prexxxxxx xxx Xxxxxal Counsel of TXU Corp., Hunton & Williams LLP, counsel for the Companx, Thelen Reid & Priest LLP, counsel fox xxx Xxxxxny, and Pillsbury Winthrop LLP, counsel for the Initial Purchasers, opinions in substantially the form and substance prescribed in Schedules II, III, IV and V hereto with such changes therein as may be agreed upon by the Company and the Representative on behalf of the Initial Purchasers, with the approval of counsel for the Initial Purchasers. (b) On and as of the Firm Closing Date, the Initial Purchasers shall have received from Deloitte & Touche LLP a letter to the effect that (i) they are independent certified public accountants with respect to the Company, within the meaning of the Securities Act and the applicable published rules and regulations thereunder, (ii) in their opinion, except as stated in the Offering Memorandum, the consolidated financial statements audited by them and included or incorporated by reference in the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related rules and regulations by the SEC thereunder, (iii) on the basis of a reading of the unaudited amounts of operating revenues and net income included or incorporated by reference in the Offering Memorandum and the related consolidated financial statements from which these amounts were derived, the latest available unaudited consolidated financial statements of the Company and the minute books of the Company and inquiries of officers of the Company and of certain direct and indirect subsidiaries 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 would not necessarily reveal matters of significance with respect to the comments made in such letter, and accordingly that Deloitte & Touche LLP makes no representation as to the sufficiency of such procedures for the several Initial Purchasers' purposes), nothing has come to their attention which caused them to believe that (A) any material modifications should be made to the unaudited condensed consolidated financial statements of the Company included in the quarterly report, incorporated by reference in the Offering Memorandum, for them to be in conformity with generally accepted accounting principles, (B) the unaudited condensed consolidated financial statements included in the quarterly report do not conform in all material respects with the applicable accounting requirements of the Exchange Act and the related rules and regulations adopted by the SEC and (C) at a specified date not more than five days prior to the date of such letter, there was any change in the capital stock (which includes common stock and preference stock) of the Company, short-term bank loans, commercial paper, long term debt or long-term debt due currently of the Company or decrease in its net assets (excluding changes due to Other Comprehensive Income), in each case as compared with amounts shown in the most recent consolidated balance sheets of the Company incorporated by reference in the Offering Memorandum, except in all instances for changes or decreases that the Offering Memorandum discloses have occurred or may occur or which are occasioned by the acquisition of long-term debt for sinking fund purposes, or which are described in such letter, and (iv) they have compared the dollar amounts (or percentages or ratios derived from such dollar amounts) and other financial information included or incorporated by reference in the Offering Memorandum as reasonably requested by the Initial Purchasers (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its consolidated subsidiaries subject to the internal controls of the accounting system of such companies or are derived indirectly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. (c) Since the most recent dates as of which information is given in the Offering Memorandum, there shall not have been any material adverse change in the business, property or financial condition of the Company and its subsidiaries, considered as a whole, whether or not in the ordinary course of business, and, since such dates, there shall not have been any material transaction entered into by any of the Company and the Material Subsidiaries, in each case other than transactions in the ordinary course of business and transactions contemplated by the Offering Memorandum, and at the Firm Closing Date the Initial Purchasers shall have received a certificate to such effect dated the Firm Closing Date and signed by an officer of the Company. (d) All opinions, certificates, letters and documents to be provided in connection with the issuance and sale of the Firm Notes as provided herein, including the Registration Rights Agreement, shall be satisfactory in form and substance to counsel for the Initial Purchasers. (e) At the Firm Closing Date, (i) the Notes shall be rated at least Ba1 by Moody's Investors Service, Inc. ("Moxxx'x") and BBB- by Standard & Poor's, a division of the McGraw Hill Companies, Inc. ("S&P"), and the Company shall have delivered to the Initial Purchasers a letter from each such rating agency, or other evidence satisfactory to the Representative on behalf of the Initial Purchasers, confirming that the Notes have such ratings, and (ii) neither Moody's nor S&P shall have, since the date of this Agreement, downgraded or publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Notes or any securities of the Company which are of the same class as the Notes, or of the financial condition of the Company. (f) At the Firm Closing Date, the Shares issuable upon conversion of the Notes shall have been approved for listing on the New York, Chicago and Pacific stock exchanges upon notice of issuance. (g) In the event that the Underwriters exercise the option provided in Section 3(b) hereof to purchase all or any portion of the Option Notes, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company hereunder shall be true and correct as ~~of the date hereof~~ of, and as ~~of each~~ if made on, the applicable Option Closing Date, ~~as if made on~~ and ~~as of each~~ at the applicable Option 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 to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) the Underwriters shall have received a certificate, dated such ~~counsel has no reason to believe that (other than the financial statements and other financial information contained therein~~Option Closing Date, ~~as to which such counsel need express no opinion) the Final Memorandum, as~~ of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light an officer of the ~~circumstances under which they were made~~Company confirming that the certificate delivered at the Firm Closing Date pursuant to Section 8(c) hereof is true and correct as of, ~~not misleading.~~and as if made on, such Option Closing Date; (ii) the ~~Company~~ Underwriters shall have received the favorable opinions of Eric H. Peterson, Hunton & Williams XXX xxx Xxxxxx Xxxx & Priest LXX, xxxx xx xxxx xxx xxxxtance satisfactory to Counsel for the Initial Purchasers, and of Pillsbury Winthrop LLP, each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where dated such ~~counsel has been advised that the failure to be so qualified would amount to a material liability or disability~~ Option Closing Date, each relating to the ~~Company~~ Option Notes and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise ~~set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or,~~ to the ~~best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments~~same effect as the opinions required by Section 8(a) hereof; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers Underwriters shall have received a ~~legal opinion~~ letter from ~~Xxxxxx Xxxxxx~~ Deloitte & ~~Xxxxxxx~~ Touche LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to ~~counsel for~~ the Initial ~~Purchasers. (d) The Company shall have furnished or caused to be~~ Purchasers and dated such Option Closing Date, substantially the same in form and substance as the letter furnished to the Initial Purchasers at pursuant to Section 8(b) hereof, except that the ~~Closing~~ "specified date" in the letter furnished pursuant to this Section 8(g)(iii) shall be a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or date not more than five days prior to ~~the~~ such Option Closing Date; and (iiA) ~~subsequent to~~ the ~~respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto)~~Notes shall be rated at least Ba1 by Moody's and BBB- by S&P, ~~neither~~ and the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have ~~been executed and~~ delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 satisfactory in all material respects to the Initial Purchasers ~~and counsel for~~ a letter from each such rating agency, or other evidence satisfactory to the Representative on behalf of the Initial Purchasers, confirming that the Notes have such ratings, and (B) neither Moody's nor S&P shall have, since the date of this Agreement, downgraded or publicly announced that it has under surveillance or review, with possible negative implications, its ratings of the Notes or any securities of the Company which are of the same class as the Notes, or of the financial condition of the Company. The ~~Company~~ failure of one or more conditions, specified in this Section 8, shall ~~furnish to~~ permit the termination of this Agreement by the Representative on behalf of the Initial Purchasers upon notice thereof to the Company. Any such ~~conformed copies~~ termination shall be without liability of ~~such opinions, certificates, letters,~~ any party to any other party except as otherwise provided in Sections 6(f) and ~~documents in such quantities as the Initial Purchasers shall reasonably request~~9 hereof.

Appears in 1 contract

Samples: Purchase Agreement (Txu Corp /Tx/)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, from Xxxxxx Xxxx & Xxxxxxxx ~~Chance US~~ LLP, counsel for MergerCo, or, as to such of the ~~Company~~following matters as EHI may request, ~~dated~~ Xxxxxx & Xxxxxxx, counsel for EHI and the ~~Closing Date~~Subsidiary Guarantor, in form and substance satisfactory to counsel for the Initial Purchaser, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company MergerCo is duly incorporated and each of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ MergerCo, EHI and the ~~Exchange Act) have been duly organized and are~~ Subsidiary is a validly existing ~~as corporations~~ corporation in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of ~~incorporation~~ incorporation, with all requisite corporate power and ~~are~~ authority to own its properties and conduct its business as now conducted and as described in the Final Memorandum; each of MergerCo, EHI and the Subsidiary is duly qualified to ~~transact~~ do business as a foreign ~~corporations~~ corporation and ~~are~~ is in good standing ~~under the laws of~~ in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such ~~counsel has been advised that~~ qualification, except where the failure to be so qualified ~~would amount~~ or be in good standing could not reasonably be expected to have, individually or in the aggregate, a ~~material liability or disability to~~ Material Adverse Effect. (ii) All of the ~~Company~~ outstanding shares of the Subsidiary are owned by EHI. (iii) MergerCo and ~~its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries~~ EHI have ~~full~~ all requisite corporate power and authority to ~~own~~execute, ~~lease~~ deliver and ~~operate~~ perform their respective ~~properties~~ obligations under the Notes, the Exchange Notes and ~~assets and conduct their respective businesses as described~~ the Private Exchange Notes. The Notes are in the ~~Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and~~ form contemplated by the Indenture and ~~to carry out all~~ the ~~terms and provisions hereof and thereof and~~ Supplemental Indenture. Each of the ~~Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries~~Notes, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes ~~have~~ has been duly and validly authorized by and, in the ~~Company~~case of the Notes, ~~and when the Exchange Notes and the Private Exchange Notes are duly~~ executed and delivered by ~~the Company in accordance with the terms of the Registration Rights Agreement and the Indenture~~ EHI (assuming ~~the due authorization, execution and delivery of the Indenture by the Trustee and due~~ authentication ~~and delivery of the Exchange Notes and the Private Exchange Notes~~ by the Trustee in accordance with the ~~Indenture)~~provisions of the Indenture and, in the case of the Notes, delivery to and payment for by the Initial Purchaser in accordance with the terms of this Purchase Agreement) and constitute or, in the case of such Exchange Notes or Private Exchange Notes, will ~~be the legal,~~ constitute valid and legally binding obligations of MergerCo and EHI, entitled to the ~~Company,~~ benefits of the In- denture and enforceable against MergerCo and EHI in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ A) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other laws affecting creditors’ ' rights ~~generally from time~~ generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to ~~time in effect)~~shareholders, or (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing. (~~viii~~iv) ~~the Company~~ The Subsidiary Guarantor has all requisite corporate power and authority to execute, deliver and perform its obligations under the ~~Registration Rights Agreement; the Registration Rights Agreement~~ Guarantee. The Guarantee has been duly ~~authorized by the Company and~~and validly authorized, ~~when duly~~ executed and delivered by the ~~Company~~ Subsidiary Guarantor and constitutes the valid and legally binding obligation of the Subsidiary Guarantor, entitled to the benefits of the Indenture and enforceable against the Subsidiary Guarantor in accordance with its terms, except that the enforcement thereof may be subject to (~~assuming~~ A) bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, or (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing. (v) MergerCo and EHI and the Subsidiary Guarantor have all requisite corporate power and authority to execute, deliver and perform their respective obligations under the Indenture. The Indenture conforms in all material respects with the provisions of the TIA applicable to an indenture which is qualified thereunder. The Indenture has been duly and validly authorized, executed and delivered by MergerCo. The Supplemental Indenture has been duly and validly authorized, executed and delivered by each of EHI and the Subsidiary Guarantor. The Indenture as supplemented by the Supplemental Indenture (assuming, in each case, the due authorization, execution and delivery thereof by the ~~Initial Purchasers~~Trustee), ~~will be~~ constitutes a ~~legal,~~ valid and legally binding ~~agreement~~ agreement, in the case of the ~~Company~~Indenture, of MergerCo and, in the case of the Indenture and the Supplemental Indenture, of EHI and the Subsidiary Guarantor, enforceable against MergerCo, EHI and the ~~Company~~ Subsidiary Guarantor, respectively, in accordance with ~~its terms~~ their respective terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ A) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other laws affecting creditors’ ' rights ~~generally from time~~ generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to ~~time~~ shareholders, or (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing. (vi) MergerCo and EHI and the Subsidiary Guarantor have all requisite corporate power and authority to execute, deliver and perform their respective obligations under the Registration Rights Agreement. The Registration Rights Agreement has been duly and validly authorized by MergerCo and EHI and the Subsidiary Guarantor. The Registration Rights Agreement has been duly and validly executed and delivered by MergerCo and assumed by each of EHI and the Subsidiary Guarantor, and constitutes a valid and legally binding agreement of MergerCo, EHI and the Subsidiary Guarantor, enforceable against MergerCo and EHI and the Subsidiary Guarantor, respectively, in ~~effect and~~ accordance with its terms, except that (A) the enforcement thereof may be subject to (1) bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, or (2) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (vii) MergerCo and EHI and the Subsidiary Guarantor have all requisite corporate power and authority to execute, deliver and perform their obligations under this Purchase Agreement and to consummate the transactions contemplated hereby. This Purchase Agreement and the transactions contemplated hereby have been duly and validly authorized by MergerCo and EHI and the Subsidiary Guarantor. This Purchase Agreement has been duly and validly executed and delivered by MergerCo. (viii) EHI and the Subsidiary Guarantor have all requisite corporate power and authority to execute, deliver and perform their obligations under the Assumption Agreement and to consummate the transactions contemplated thereby. The Assumption Agreement and the transactions contemplated thereby have been duly and validly authorized, executed and delivered by each of EHI and the Subsidiary Guarantor and constitutes a valid and legally binding agreement of EHI and the Subsidiary Guarantor, enforceable against EHI and the Subsidiary Guarantor in accordance with its terms, except that (A) the enforcement thereof may be subject to (1) bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, or (2) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing. (ix) The statements set forth under the ~~execution~~ heading "Employment Agreements" under the caption "Management," under the headings "Management Agreement" and ~~delivery by~~ "Shareholders Agreement" under the ~~Company of~~caption "Certain Relationships and Related Transactions," and under the captions "Description of Notes," "Description of New Credit Facility," "Description of Redeemable Preferred Stock and Warrants," and "Exchange Offer; Registration Rights" in the Final Memorandum, ~~and~~ insofar as such statements purport to summarize certain provisions of the ~~performance by the Company of its obligations under~~Employment Agreements, ~~this~~ Management Agreement, ~~the~~ Shareholders Agreement, Indenture, Securities, Exchange Notes, Private Exchange Notes, Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (Series A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.

Appears in 1 contract

Samples: Purchase Agreement (Power Ten)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the ~~Notes shall,~~ Securities shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from Xxxxxxxx Chance US LLP~~the opinion, dated as of the Closing Date and after giving effect to the Recapitalization and addressed to the Initial Purchasers, of Hutcxxxx, Xxeexxx & Xittxxx, x Professional Corporation, and Cox & Xmitx Xxxorporated, counsel for the ~~Company~~Issuers, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchasers, to the effect ~~that:~~that (subject to customary assumptions, qualifications and exceptions): (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act) have been duly organized and are~~ Subsidiaries is validly existing ~~as corporations~~ and in good corporate standing under the laws of ~~their~~ its respective ~~jurisdictions~~ jurisdiction of incorporation and ~~are~~ has all requisite corporate power and authority to own its properties and to conduct its business as described in the Final Memorandum. Each of the Company and the Subsidiaries is duly qualified to ~~transact~~ do business as a foreign ~~corporations and are~~ corporation in good standing ~~under the laws of~~ in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such ~~counsel has been advised that~~ qualification, except where the failure to be so qualified would ~~amount to~~ not, individually or in the aggregate, have a ~~material liability or disability to~~ Material Adverse Effect. (ii) The Company has the ~~Company~~ authorized, issued and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described outstanding capitalization set forth in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the ~~issued and~~ outstanding shares of capital stock of ~~each~~ the Company and the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights; all of the outstanding shares of capital stock of the Subsidiaries are owned, directly or indirectly, by the Company~~’s significant subsidiaries~~, ~~except~~ and, to the knowledge of such counsel, free and clear of all other liens, encumbrances, equities and claims or restrictions on transferability (other than liens, restrictions and encumbrances in favor of the lenders under the New Credit Facility and other than those imposed by the Act and the securities or "Blue Sky" laws of certain jurisdictions) or voting. (iii) Except as ~~otherwise~~ set forth in the Final ~~Memorandum~~Memorandum (A) no options, warrants or other rights to purchase from the Company shares of capital stock or ownership interests in the Company are ~~owned beneficially~~ outstanding, (B) no agreements or other obligations to issue, or other rights to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company are outstanding and (C) no holder of securities of the Company is entitled to have such securities registered under a registration statement filed by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the ~~Act and the Exchange Act and the respective rules and regulations thereunder;~~Registration Rights Agreement. (iv) ~~the execution and delivery of this Agreement have been duly authorized by all necessary corporate action~~ Each of the ~~Company~~ Issuers has all requisite corporate power and authority to execute, deliver and perform each of its respective obligations under the Indenture, the Securities, the Exchange Notes and the ~~Agreement~~ Private Exchange Notes; the Indenture meets the requirements for qualification under the TIA; the Indenture has been duly ~~executed~~ and ~~delivered~~ validly authorized by ~~the Company; (v) the execution and delivery~~ each of the ~~Indenture have been duly authorized by the Company~~ Issuers and, when duly executed and delivered by each of the ~~Company~~ Issuers (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the ~~Indenture will be a legal,~~ valid and legally binding agreement of the Issuers, enforceable against the Issuers in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (v) Each Guarantor has all requisite corporate power and authority to execute, deliver and perform each of its obligations under its Guarantee, the Exchange Notes Guarantee and the Private Exchange Notes Guarantee. The Guarantees, when issued, will be in the form contemplated by the Indenture. The Guarantees, the Exchange Notes Guarantees and the Private Exchange Notes Guarantees have each been duly and validly authorized by the Guarantors and, in the case of the Guarantees, when delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of the Guarantors, entitled to the benefits of the Indenture, and enforceable against the Guarantors in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (vi) The Notes are in the form contemplated by the Indenture. The Notes have each been duly and validly authorized by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect). The Indenture meets the requirements for qualification under the TIA.~~ and (viii) ~~the Notes have been duly authorized by all necessary corporate action~~ general principles of ~~the Company and, on~~ equity and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;the (vii) ~~the~~ (A) The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the ~~Company~~Company and (B) the Exchange Notes Guarantees and the Private Exchange Notes Guarantees have been duly and validly authorized by each of the Guarantors, and when the Exchange Notes, the Private Exchange Notes, the Exchange Notes Guarantees and the Private Exchange Notes ~~are~~ Guarantees have been duly executed and delivered by the ~~Company~~ Issuers in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes, the Private Exchange Notes, the Exchange Notes Guarantees and the Private Exchange Notes Guarantees by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the ~~Company~~Issuers, entitled to the benefits of the Indenture, and enforceable against the Issuers in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect)~~and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (viii) Each of the ~~Company~~ Issuers has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by each of the ~~Company~~ Issuers and, when duly executed and delivered by each of the ~~Company~~ Issuers (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will ~~be a legal,~~ constitute the valid and legally binding agreement of the ~~Company~~Issuers, enforceable against the ~~Company~~ Issuers in accordance with its ~~terms~~ terms, except that (~~subject, as~~ A) the enforcement thereof may be subject to ~~enforcement of remedies, to applicable~~ (i) bankruptcy, insolvency, reorganization~~, insolvency~~, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect~~ and ~~except that~~ (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) Each of the ~~execution~~ Issuers has all requisite corporate power and ~~delivery by the Company of~~authority to execute, deliver and ~~the performance by the Company of~~ perform its obligations ~~under,~~ under this ~~Agreement,~~ Agreement and to consummate the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of transactions contemplated hereby; this Agreement and the consummation by the Issuers of the transactions contemplated hereby have been duly and validly authorized by the Issuers. This Agreement has been duly executed and delivered by each of the Issuers. (x) The Indenture, the Securities, the Registration Rights Agreement and the New Credit Facility conform in all material respects to the descriptions thereof contained in the Final Memorandum. (xi) Except as described in the Final Memorandum no actions, suits, proceedings, inquiries or investigations are pending or, to the knowledge of such counsel, 19 threatened to which any of the Company or the Subsidiaries is a party or to which the property or assets of the Company or any Subsidiary are subject, before or brought by any court, arbitrator or governmental agency or body which, if determined adversely to the Company or the Subsidiaries, would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Securities to be sold hereunder or the consummation of the Recapitalization or the other transactions ~~herein contemplated do not~~ described in the Final Memorandum. (xxii) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws None of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act Company or the ~~TIA~~ Subsidiaries is (i) in ~~connection with the exchange offer contemplated by the Registration Rights Agreement~~violation of its certificate of incorporation or bylaws (or similar organizational document), or (yii) ~~conflict with or result~~ in a breach or violation of any ~~of the terms and provisions of~~statute, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation applicable to any of them or any of their respective properties or assets, except for any such breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect. (xiii) The execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement and the New Credit Facility and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale by the Issuers of the Securities to the Initial Purchasers) will not conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any ~~court~~ of (i) the terms or ~~other governmental authority or~~ provisions of any ~~arbitrator~~ Contract known to such ~~counsel and applicable to~~ counsel, except for any such conflict, breach, violation, default or event which would not, individually or in the ~~Company or its significant subsidiaries;~~ aggregate, have a Material Adverse Effect, (xii) the ~~Company is not an “investment company” and, after giving effect to the Offering~~ certificate of ~~the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and~~ incorporation or bylaws (xior similar organizational document) ~~such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property~~ of the Company or any of ~~its subsidiaries~~ the Subsidiaries, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) any statute, judgment, decree, order, rule or regulation known to such counsel to be applicable to the Company or any of the Subsidiaries or any of their respective properties or assets, except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect. (xiv) No consent, approval, authorization or order of any court or governmental agency or body, or, to such counsel's knowledge, third party is ~~subject that~~ required for the issuance and sale by the Issuers of the Securities to the Initial Purchasers or the consummation by the Issuers of the Recapitalization or the other transactions contemplated hereby or thereby, except such as have been obtained and such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained. (xv) There are no legal or governmental proceedings involving or affecting the Company or the Subsidiaries or any of their respective properties or assets which would be required to be described in a prospectus pursuant to the Act that are not described in the Final ~~Memorandum or~~ Memorandum, nor are there any ~~statutes, regulations,~~ material contracts or other documents ~~that~~ which would be required to be described in a prospectus pursuant to the Act that are not described ~~or incorporated~~ in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.the

Appears in 1 contract

Samples: Purchase Agreement (Eye Care Centers of America Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the ~~Notes shall, be subject~~Securities hereunder is subject to the fulfillment, in the Initial ~~Purchasers’~~ Purchaser's sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each 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 to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued, and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No order suspending the sale of the Securities in any jurisdiction shall have been issued, and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, shall be contemplated. (b) Subsequent to the date hereof and prior to the Closing Date, the conduct of the business and operations of the Company has not been interfered with by strike, fire, flood, hurricane, accident or other calamity (whether or not insured) and, except as otherwise stated in the Offering Memorandum, the properties of the Company 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, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect. (c) The Initial ~~Purchasers~~ Purchaser shall have received ~~a legal~~ on the Closing Date an opinion ~~from Xxxxxxxx Chance US LLP,~~ of Xxxxxx Godward LLP counsel for the Company, dated the Closing ~~Date~~Date and addressed to the Initial Purchaser, in form and substance satisfactory to Xxxxxx & Xxxxxxx, counsel for the Initial Purchaser, to the effect that: (i) ~~such counsel has no reason to believe that (other than the financial statements~~ The Company is a corporation duly incorporated and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing ~~as corporations~~ in good standing under the laws of ~~their respective jurisdictions~~ the State of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have Delaware with full corporate power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the ~~Final~~ Offering Memorandum and, to the best of such counsel's knowledge, is duly registered and qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction where the nature of its properties or the conduct of its business requires such registration or qualification, except (a) in Massachusetts and New York, where the Company is not in good standing, and (b) where the failure so to register or qualify or to be in good standing could not, singly or in the aggregate with all other such failures, reasonably be expected to have a Material Adverse Effect; (ii) The authorized capital stock of the Company, and to such counsel's knowledge, the number of outstanding shares of the Company's Capital Stock as of the date of the Offering Memorandum is as set forth in the second paragraph under the caption "Description of Capital Stock" in the Offering Memorandum, and to such counsel's knowledge, the number of the Company's outstanding warrants is as set forth under the caption "Warrants" in the Offering Memorandum. (iii) The Company has corporate power and authority to enter into this ~~Agreement, the Registration Rights~~ Agreement and the ~~Indenture~~ other Transaction Documents and to ~~carry out all~~ issue, sell and deliver the ~~terms~~ Notes, the Initial Warrants and ~~provisions hereof and thereof and of~~ the ~~Notes~~ Contingent Warrants to be ~~carried out~~ sold by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, it to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar Initial Purchaser as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunderprovided herein; (iv) The Notes, the ~~execution~~ Initial Warrants and ~~delivery of this Agreement~~ the Contingent Warrants have been duly and validly authorized ~~by all necessary corporate action of the Company and the Agreement has been duly executed and delivered~~ by the Company; (v) ~~the execution and delivery of the Indenture~~ The Warrant Shares have been duly ~~authorized~~ reserved by the Company ~~and~~for issuance upon exercise of the Initial Warrants in sufficient number to cover the exercise of all of the Initial Warrants at the initial number of Warrant Shares deliverable upon exercise of the Initial Warrants, and the issuance of the Warrant Shares upon exercise of the Warrants has been duly and validly authorized, and the Warrant Shares, when ~~duly executed~~ paid for and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the ~~Registration Rights Agreement~~ Warrants and the ~~Indenture (assuming the due authorization~~Warrant Agreement, ~~execution~~ will be validly issued, fully paid and ~~delivery~~ nonassessable. The shares of Common Stock issuable upon exercise of the ~~Indenture~~ Contingent Warrants have been duly reserved by the ~~Trustee and due authentication and delivery~~ Company for issuance upon exercise of the ~~Exchange Notes~~ Contingent Warrants in sufficient number to cover the exercise of all the Contingent Warrants at the initial number of shares deliverable upon exercise of the Contingent Warrants, and the ~~Private Exchange Notes by~~ issuance of the ~~Trustee~~ initial number of shares issuable upon exercise of the Warrants has been duly and validly authorized, and such shares, when paid for and delivered in accordance with the ~~Indenture)~~terms of the Contingent Warrants and the Initial Warrant Agreement, will be ~~the legal~~validly issued, ~~valid~~ fully paid and ~~binding obligations~~ nonassessable. To such counsel's best knowledge, no holder of ~~the Company, enforceable in accordance with their terms (subject, as to enforcement~~ capital stock of ~~remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii)~~ the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to preemptive or similar rights applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are boundWarrants, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) Warrant Shares or the ~~effectiveness~~ Contingent Warrants other than the right of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) the due performance by the Initial Purchasers of the agreements first refusal set forth in ~~Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to~~ the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the Registration Investors' 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. (h) On or before the Closing Date, 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 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 shall reasonably request.which has been waived;

Appears in 1 contract

Samples: Purchase Agreement (Coinstar Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase and pay for the ~~Notes shall,~~ Securities to be ~~subject~~purchased by it on the Closing Date hereunder are subject to the fulfillment, in ~~the~~ such Initial ~~Purchasers’~~ Purchaser's sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each 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 to the following ~~additional~~ conditions: (a) At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for those purposes shall have been commenced or shall be pending or, to the knowledge of the Company, threatened. No order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, threatened. (b) On the Closing Date, the Company shall have delivered to the Initial Purchasers ~~shall have received~~ a ~~legal opinion from Xxxxxxxx Chance US LLP~~true, ~~counsel for~~ correct and complete copy of the credit agreement (the "Credit Agreement") dated as of July 7, 1998 by and among the Company, ~~dated~~ the Guarantors, the lenders party thereto in their capacities as lenders thereunder and First Union National Bank, as agent; on and as of the Closing ~~Date,~~ Date (after giving effect to the ~~effect that:~~consummation of the transactions contemplated by this Agreement), there shall not exist any condition which would constitute a Default or an Event of Default (as defined in the Credit Agreement). (c) Subsequent to the date hereof, (i) ~~such counsel has no reason to believe that~~ except as disclosed or contemplated in the Offering Memorandum, there shall not have occurred any material adverse change in the condition (~~other than~~ financial or other), business, prospects, properties, assets, net worth or results of operations of the ~~financial statements~~ Company and ~~other financial information contained therein~~the Subsidiaries, taken as ~~to which such counsel need express no opinion~~a whole, which, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) the ~~Final Memorandum, as of its date or the date of such opinion, included or includes~~ Offering Memorandum shall not contain any untrue statement of a material fact or ~~omitted or omits~~ omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~. (ii)~~ , if amending or supplementing the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified Offering Memorandum to ~~transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where~~ correct any such ~~counsel has been advised that the failure to be so qualified would amount to a material liability~~ misstatement or ~~disability to the Company and its subsidiaries~~omission could, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy sole judgment of the Initial Purchasers~~’ representations in Section 8 and those~~ , materially adversely affect the marketability of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateSecurities. (bd) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion from ~~Xxxxxx Xxxxxx~~ each of Edwaxxx & ~~Xxxxxxx LLP~~Xngexx xxx Wellesley Law Associates, counsel for the ~~Initial Purchasers~~Company, dated the Closing ~~Date, with respect~~ Date and addressed to ~~certain legal matters relating to this Agreement and such other related matters as~~ the Initial ~~Purchasers may reasonably require. In rendering such opinion~~Purchasers, ~~Xxxxxx Xxxxxx & Xxxxxxx LLP shall have received~~ substantially in the form of, respectively, EXHIBIT B-1 and ~~may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters~~EXHIBIT B-2 hereto. (ce) The Initial Purchasers shall have received ~~from PricewaterhouseCoopers LLP a letter or~~ on the Closing Date an opinion of Cahixx Xxxxxx & Xeinxxx, (f) The Initial Purchasers shall have received "cold comfort" letters ~~dated~~addressed to the Initial Purchasers, ~~respectively,~~ and dated the date hereof and the Closing Date, from Arthxx Xxxexxxx XXX, substantially in ~~form and substance satisfactory to counsel for~~ the forms heretofore approved by the Initial Purchasers. (di) There shall not have been any change in the capital stock of the Company or any Subsidiary nor any material increase in the short-term or long-term debt of the Company or any Subsidiary from that set forth or contemplated in the Offering Memorandum; (ii) except as disclosed or contemplated by the Offering Memorandum, the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole; (iii) all the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; and (iv) the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of each of the Company and the Guarantors (or such other officers as are acceptable to the Initial Purchasers), to the effect set forth in this Section 7(g) and in Section 7(h) hereof. (h) The Company and the Guarantors shall not have failed at or prior to the Closing Date to have performed or complied with any of their respective agreements herein contained and required to be performed or complied with by them hereunder at or prior to the Closing Date. (i) There shall not have been any announcement by any "nationally recognized statistical rating (j) The Securities shall have been approved for trading on PORTAL. (k) The Company shall have taken all necessary acts to (i) repay all of the indebtedness for money borrowed of the Company and the Subsidiaries indicated as being repaid in the Offering Memorandum under the caption "Selected Pro Forma Financial Data" immediately prior to the issuance of the Securities and (ii) terminate the related credit agreements. (l) The Company shall have received a solvency opinion from Houlihan, Lokey, Howaxx & Xukin Financial Advisors, Inc., which solvency opinion shall be in form and substance reasonably satisfactory to the Initial Purchasers. (m) The Company and the Guarantors shall have furnished or caused to be furnished to the Initial Purchasers ~~at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ such further certificates and ~~its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct~~ customary closing documents 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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~~requested. All such opinions, certificates, letters and other documents ~~delivered pursuant to this Agreement~~ will ~~comply~~ be in compliance with the provisions hereof only if they are reasonably satisfactory in ~~all material respects~~ form and substance to the Initial ~~Purchasers~~ Purchasers. Any certificate or document signed by any officer of the Company or a Guarantor and delivered to the Initial Purchasers, or to counsel for the Initial Purchasers~~. The~~ , shall be deemed a representation and warranty by the Company ~~shall furnish~~ or such Guarantor to the Initial Purchasers ~~such conformed copies of such opinions, certificates, letters, and documents in such quantities~~ as to the ~~Initial Purchasers shall reasonably request~~statements made therein.

Appears in 1 contract

Samples: Purchase Agreement (Simonds Industries Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall,~~ hereunder shall be subject, in ~~the Initial Purchasers’ sole~~ their discretion, to the ~~accuracy of the~~ condition that all representations and warranties and other statements of the Company ~~contained~~ herein ~~as of the date hereof~~ are, at and as of each ~~Closing Date~~Time of Delivery, ~~as if made on~~ true and ~~as of each Closing Date~~correct, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by~~ condition that the Company shall have performed all of its ~~covenants~~ obligations hereunder theretofore to be performed, and ~~agreements hereunder and to~~ the following additional conditions: ~~(a) On the Closing Date, the Initial Purchasers shall have received a legal opinion from~~ x. Xxxxx Xxxx & Xxxxxxxx Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, shall have furnished to you such opinion or opinions, dated ~~the Closing Date~~such Time of Delivery, with respect to ~~certain legal~~ such matters ~~relating to this Agreement~~ as you may reasonably request, and such ~~other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx LLP~~ counsel shall have received ~~and may rely upon~~ such ~~certificates and other documents~~ papers and information as it they may reasonably request to enable them to pass upon such matters.; ~~(c) The Initial Purchasers~~ x. Xxxxxx Drinker Xxxxxx & Xxxxx LLP, counsel for the Company, shall have ~~received from PricewaterhouseCoopers~~ furnished to you its written opinion, dated such Time of Delivery, in form and substance agreed to by the parties prior to the date hereof; c. On the date of the Offering Memorandum concurrently with the execution of this Agreement and also at each Time of Delivery, Xxxxx & Young LLP shall have furnished to you a letter or ~~letters dated~~letters, ~~respectively,~~ dated the ~~date hereof and the Closing Date~~respective dates of delivery thereof, in form and substance satisfactory to ~~counsel for the Initial Purchasers.~~you; (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither i. Neither the Company nor any of its subsidiaries ~~has~~ shall have sustained since the date of the latest audited financial statements included in the Pricing Memorandum any ~~material~~ loss or interference with ~~their respective businesses or properties~~ its business from fire, ~~flood~~explosion, ~~hurricane, accident~~ flood or other calamity, whether or not covered by insurance, or from any labor dispute or ~~any legal~~ court or governmental ~~proceeding~~action, order or decree, otherwise than as set forth or contemplated in the Pricing Memorandum, and (ii) since the respective dates as of which information is given in the Pricing Memorandum there ~~has~~ shall not have been any ~~materially adverse change (including, without limitation, a~~ change in ~~management~~ the capital stock (other than the issuance or ~~control)~~grant of securities pursuant to employee equity incentive plans existing as of the date of this Agreement or pursuant to outstanding options, warrants or rights) or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective ~~materially adverse~~ change, in or affecting the ~~condition (financial or otherwise)~~general affairs, management, ~~earnings, properties, business affairs or business prospects~~financial position, stockholders’ ~~equity, net worth~~ equity or results of operations of the Company ~~or any of~~ and its subsidiaries, ~~taken~~ otherwise than as ~~a whole~~set forth or contemplated in the Pricing Memorandum, ~~except~~ the effect of which, in ~~each~~ any such case as described in clause (i) or ~~contemplated by~~ (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the ~~Final Memorandum (exclusive of any amendment~~ offering or ~~supplement thereto). (e) Subsequent to~~ the ~~execution and~~ delivery of the Securities on the terms and in the manner contemplated in this Agreement and ~~prior to~~ in each of the ~~Closing Date, there~~ Pricing Disclosure Package and the Offering Memorandum; e. On or after the Applicable Time (i) no downgrading shall ~~not~~ have occurred ~~any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change,~~ in the rating accorded ~~any of~~ the Company’s debt securities by any “nationally recognized statistical rating organization”, as ~~such~~ that term is defined ~~for purposes of Rule 436(g)(2~~by the Commission in Section 3(a)(62) under the Exchange Act., and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities; f. On or after the Applicable Time there shall not have occurred any of the following: (fi) ~~The Indenture~~ a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on the Nasdaq Global Select Market; (ii) a suspension or material limitation in trading in the Company’s securities on the NYSE; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and the Offering Memorandum; g. A number of shares of Common Stock equal to the Maximum Number of Underlying Securities shall have been ~~executed~~ duly listed, subject to notice of issuance, on the NYSE; h. The Company shall have obtained and delivered ~~by all~~ to the ~~parties thereto.~~Initial Purchasers executed copies of an agreement from each of the Company’s directors and executive officers listed in Schedule IV hereto, substantially to the effect set forth in Exhibit A hereof; ~~(g) On the Closing Date, the~~ i. The Initial Purchasers shall have received an executed original copy of the ~~Registration Rights Agreement executed~~ Indenture; j. The Securities shall be eligible for clearance and settlement through the facilities of DTC; k. The Company shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsection (e) of this Section and as to such ~~agreement shall be in full force and effect at all times from and after the Closing Date.~~other matters as you may reasonably request; and ~~(h) On or before the Closing Date, the Initial Purchasers and counsel for the~~ l. The Initial Purchasers shall have received ~~such further certificates, documents or other information as they may have reasonably requested from~~ (i) a certificate of the Chief Financial Officer of the Company~~. All opinions~~, ~~certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are~~ in a form that is reasonably satisfactory ~~in all material respects~~ to the Initial ~~Purchasers~~ Purchasers, dated the date hereof, with respect to certain financial information contained in the Pricing Disclosure Package and ~~counsel for~~ (ii) a “bring-down” certificate of the Chief Financial Officer of the Company, in a form that is reasonably satisfactory to the Initial Purchasers~~. The Company shall furnish~~ , dated the Closing Date, with respect to certain financial information contained in the Offering Memorandum and to the ~~Initial Purchasers~~ effect that such ~~conformed copies of~~ officer reaffirms the statements made in the initial certificate furnished pursuant to subclause (i) with respect to such ~~opinions, certificates, letters, and documents~~ financial information contained in ~~such quantities as~~ the ~~Initial Purchasers shall reasonably request~~Pricing Disclosure Package.

Appears in 1 contract

Samples: Purchase Agreement (Workiva Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, be subject, in the Initial ~~Purchasers’~~ Purchaser’s sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received a legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the ~~Final~~ Offering Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the ~~Final~~ Offering Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the ~~Final~~ Offering Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the ~~Final~~ Offering Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the ~~Final~~ Offering Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company ~~and, when duly executed~~ and ~~delivered by the Company~~ (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture ~~will be~~ is a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial ~~Purchasers~~Purchaser), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial ~~Purchasers~~ Purchaser by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial ~~Purchasers~~ Purchaser and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the ~~Final~~ Offering Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the ~~Final~~ Offering Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial ~~Purchasers~~ Purchaser as contemplated by this Agreement and the ~~Final~~ Offering Memorandum or in connection with the initial resale of the Notes by the Initial ~~Purchasers~~ Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial ~~Purchasers’~~ Purchaser’s representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial ~~Purchasers~~ Purchaser and the initial resale thereof and (iii) the due performance by the Initial ~~Purchasers~~ Purchaser of the agreements set forth in Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial ~~Purchasers~~Purchaser, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial ~~Purchasers~~ Purchaser and counsel for the Initial ~~Purchasers~~ Purchaser covering matters reasonably requested by the Initial ~~Purchasers~~Purchaser. References to the ~~Final~~ Offering Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial ~~Purchasers~~ Purchaser shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial ~~Purchasers~~Purchaser, dated the Closing Date, 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, 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. (c) The Initial ~~Purchasers~~ Purchaser shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial ~~Purchasers~~Purchaser. (d) The Company shall have furnished or caused to be furnished to the Initial ~~Purchasers~~ Purchaser at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial ~~Purchasers~~ Purchaser to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the ~~Final~~ Offering Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the ~~Final~~ Offering Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date, the Initial ~~Purchasers~~ 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. (h) On or before the Closing Date, the Initial ~~Purchasers~~ Purchaser and counsel for the Initial ~~Purchasers~~ Purchaser 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 satisfactory in all material respects to the Initial ~~Purchasers~~ Purchaser and counsel for the Initial ~~Purchasers~~Purchaser. The Company shall furnish to the Initial ~~Purchasers~~ Purchaser such conformed copies of such opinions, certificates, letters, and documents in such quantities as the Initial ~~Purchasers~~ Purchaser shall reasonably request.

Appears in 1 contract

Samples: Purchase Agreement (Istar Financial Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the Notes ~~shall, be subject, in the Initial Purchasers’ sole discretion,~~ under this Agreement are subject to the ~~accuracy~~ satisfaction of each of the following conditions: (a) All the representations and warranties of the Company contained ~~herein as of~~ in this Agreement shall be true and correct on the ~~date hereof~~ Closing Date with the same force and ~~as of each Closing Date,~~ effect as if made on and as of ~~each~~ the date hereof and the Closing Date, respectively. The Company shall have performed or complied with all of their obligations and agreements herein contained and required to be performed or complied with by them at or prior to the ~~accuracy~~ Closing Date. (b) No stop order suspending the sale of the ~~statements~~ Notes in any jurisdiction referred to in Section 4(e) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (i) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of the Series A Notes; (ii) no injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance of the Series A Notes; and (iii) on the Closing Date no action, suit or proceeding shall be pending against or affecting or, to the knowledge of the Company~~’s officers made pursuant~~ , threatened against, the Company or any Subsidiary before any court or arbitrator or any governmental body, agency or official which, if adversely determined, would prohibit the issuance of the Series A Notes except as disclosed in the Offering Memorandum. (i) Since the date hereof or since the dates as of which information is given in the Preliminary Offering Memorandum or Offering Memorandum, there shall not have been any Material Adverse Change, (ii) since the date of the latest balance sheet included in the Preliminary Offering Memorandum or Offering Memorandum, and except as described or contemplated in the Offering Memorandum there shall not have been any material change in the capital stock or long-term debt, or material increase in short-term debt, of the Company or any of the Subsidiaries and (iii) the Company and the Subsidiaries shall have no liability or obligation, direct or contingent, that is material to the ~~provisions hereof~~Company and the Subsidiaries taken as a whole and is required to be disclosed on a balance sheet in accordance with GAAP and is not disclosed on the latest balance sheet included in the Offering Memorandum. (e) You shall have received certificates, to dated the ~~performance~~ Closing Date, signed by (i) the President or any Vice President or any other executive officer and (ii) a principal financial or accounting officer of the Company confirming, as of ~~its covenants~~ the Closing Date, the matters set forth in paragraphs (a), (b), (c) and ~~agreements hereunder and to the following additional conditions:~~(d) of this Section 8. (af) On the Closing Date, ~~the Initial Purchasers~~ you shall have received ~~a legal~~ an, opinion ~~from Xxxxxxxx Chance US LLP~~(satisfactory to you and your counsel), dated the Closing Date, of Alstxx & Bird, counsel for the Company~~, dated the Closing Date~~, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the The Company and each of the Subsidiaries (other than those Subsidiaries organized under laws other than the United States or its ~~“significant subsidiaries” (as defined in Rule 1.02(w~~political subdivisions and Printpack Illinois, Inc.) ~~of Regulation S-X under the Exchange Act) have been~~ is a duly organized and ~~are~~ validly existing ~~as corporations~~ corporation in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of ~~incorporation and are duly qualified to transact business as foreign corporations and are in good standing under~~ incorporation, has the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets~~ to conduct its business as it is currently being conducted and ~~conduct their respective businesses as~~ described in the ~~Final~~ Offering Memorandum, and is duly qualified as a foreign corporation and is in good standing in each jurisdiction where the ownership, leasing or operation of property or the conduct of its business requires such qualification, except where the failure to be so qualified would not, singly or in the aggregate, have a Material Adverse Effect; (ii) The Company has all necessary corporate power and authority to ~~enter into this Agreement,~~ execute and deliver the ~~Registration Rights Agreement~~ Transaction Documents and the ~~Indenture~~ Notes, and to ~~carry out all~~ perform its obligations under the ~~terms~~ Transaction Documents and ~~provisions hereof and thereof and of~~ the Notes and to ~~be carried out by it; all of~~ authorize issue, sell and deliver the ~~issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except~~ Notes as ~~otherwise set forth in the Final Memorandum, are owned beneficially~~ contemplated by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instrumentsPurchase Agreement; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the The Purchase Agreement has been duly ~~executed~~ authorized and ~~delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly~~ validly executed and delivered by the Company ~~(assuming the due authorization, execution~~ and ~~delivery thereof by the Trustee), the Indenture will be~~ constitutes a ~~legal,~~ legally valid and binding agreement of the Company, enforceable against ~~the Company~~ it in accordance with its ~~terms (subject~~terms, ~~as to enforcement of remedies,~~ subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, ~~insolvency,~~ moratorium ~~or other~~ and similar laws affecting creditors’ ' rights generally ~~from time~~ and to ~~time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action~~ principles of ~~the Company and~~equity, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement whether at law or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect equity and except ~~that any~~ as rights to indemnity or and contribution thereunder may be limited by federal and state securities laws and public policy ~~considerations~~considerations underlying such laws; (iv) The issuance and sale of the Series A Notes has been duly authorized by the Company, and all legally required corporate proceedings by the Company in connection with the issuance and sale of the Series A Notes have been taken; when authenticated in accordance with the terms of the Indentures and delivered to and paid for by the you in accordance with the terms of the Purchase Agreement, the Series A Notes will be legally valid and binding agreements of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indentures, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity, whether at law or in equity; (v) The issuance of the Series B Notes has been duly authorized by the Company and all legally required corporate proceedings by the Company in connection with the issuance of the Series B Notes have been taken; when authenticated in accordance with the terms of the Indentures and delivered to and paid for by you in accordance with the terms of the Registered Exchange Offer and the Indentures, the Series B Notes will be the legally valid and binding agreements of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indentures, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity, whether at law or in equity; (vi) The Indentures have been duly authorized by the Company and conform in all material respects to the description thereof in the Offering Memorandum; assuming due authorization, execution and delivery thereof by the Trustee, the Indentures constitute the legally valid and binding agreements of the Company, enforceable against it in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought at law or in equity).; (vii) The Registration Rights Agreement has been duly authorized, executed and delivered by the Company and is the legally valid and binding agreement of the Company, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and to principles of equity, whether at law or in equity and except as rights to indemnity and contribution thereunder may be limited by federal and state securities laws and public policy considerations underlying such laws and except as rights to indemnity and contribution thereunder may be limited by federal and state securities laws and public policy considerations underlying such laws; (viii) To such counsel's knowledge, all of the outstanding shares of capital stock of the Company have been duly authorized, validly issued, and are fully paid and nonassessable and were not issued in violation of any preemptive rights or similar rights; (ix) ~~the execution~~ The Reorganization has been consummated and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes conforms in all material respects to the ~~Initial Purchasers by~~ description thereof in the ~~Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not~~ Offering Memorandum; (x) ~~require~~ All of the ~~consent~~issued and outstanding shares of capital stock of, ~~approval~~or other ownership interests in, ~~authorization~~each Subsidiary have been duly and validly authorized and issued. Based solely upon a review of the stock records of each Subsidiary, ~~registration~~ all of the shares of capital stock of, or ~~qualification~~ other ownership interests in, each Subsidiary are owned, directly or through Subsidiaries, by the Company. To the best knowledge of ~~or with any governmental authority~~such counsel, all shares of capital stock are fully paid and nonassessable, and are owned free and clear of all Liens, except ~~such as have been obtained or made~~ for Liens (i) created pursuant to the New Credit Facility and ~~specified in such opinion~~the Receivables Facility, (ii) ~~or such as may be required~~ permitted by the ~~securities~~ Indentures or ~~Blue Sky laws of~~ (iii) that will be released on the ~~various states of the United States of America and other U.S. jurisdictions~~ Closing Date in connection with the ~~offer and sale~~ closing of the ~~Notes by~~ Transactions. Such opinion need not cover Subsidiaries organized under laws other than the ~~Initial Purchasers~~ United States and ~~except those that may be required by the Act~~ its political subdivision or the ~~TIA~~ authorization and issuance of capital stock of Printpack Illinois, Inc.; (xi) To such counsel's knowledge, there are no outstanding subscriptions, rights, warrants, options, calls, convertible securities, commitments of sale or Liens (except for Liens (i) created pursuant to the New Credit Facility and the Receivables Facility and Liens, subscriptions and other rights and commitments in connection with the ~~exchange offer~~ organization and operation of Flexible Funding Corp. as contemplated in the Receivables Facility, (ii) permitted by the ~~Registration Rights Agreement, or~~ Indentures and/or (yiii) ~~conflict~~ that will be released on the Closing Date in connection with ~~or result in a breach or violation of any~~ the closing of the ~~terms and provisions~~ Transactions) related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or ~~constitute a default under~~other ownership interest in, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws Subsidiary; (xii) Neither of the Company or any of ~~its significant subsidiaries~~the Subsidiaries is (a) an "investment company" or a company "controlled" by an investment company within the meaning of the Investment Company Act of 1940, as amended, or ~~any statute~~ (b) a "holding company" or ~~any judgment~~a "subsidiary company" of a holding company or an "affiliate" thereof within the meaning of the Public Utility Holding Company Act of 1935, ~~decree~~as amended; (xiii) The descriptions in the Offering Memorandum, ~~order~~as of its date and on the Closing Date, ~~rule~~ under the captions "Prospectus Summary The Reorganization"; the description of the registration of the "Printpack" trademark under "Business Patents and Trademarks"; Environmental Matters and Government Regulation"; "Legal "Proceedings"; and "Management Incentive and Deferred Compensation" insofar as such statements constitute a summary of legal matters, documents or ~~regulation of~~ proceedings referred to therein, to such counsel's knowledge with respect to factual matters, fairly and accurately present or summarize in all material respects such legal matters, documents and proceedings; and to such counsel's knowledge, there is no action, suit or proceeding before or by any court or ~~other~~ governmental ~~authority~~ agency or ~~any arbitrator known to such counsel and applicable to the Company~~ body, domestic or ~~its significant subsidiaries; (x) the Company is not an “investment company” and~~foreign, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal pending against or ~~governmental proceedings pending or threatened to which~~ affecting the Company or any of ~~its subsidiaries is a party or to which~~ the ~~property of the Company~~ Subsidiaries, or any of ~~its subsidiaries~~ their respective properties, which is ~~subject that would be~~ required to be ~~described~~ disclosed and is not so disclosed, in the Offering Memorandum, or which would result, singly or in the aggregate, in a ~~prospectus pursuant~~ Material Adverse Effect or which would materially and adversely affect the consummation of this Agreement or the transactions contemplated hereby, and to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers best knowledge of the Company and ~~public officials and~~the Subsidiaries, ~~as to matters involving the application of laws of any jurisdiction other than the State of New York~~ no such proceedings are contemplated or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Datethreatened. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.

Appears in 1 contract

Samples: Note Purchase Agreement (Printpack Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers to purchase and pay for the Senior Subordinated Notes ~~shall~~as provided herein, shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the ~~accuracy~~ satisfaction of each of the following conditions: (a) All the representations and warranties of the Company and the Subsidiary Guarantors contained ~~herein as of~~ in this Agreement shall be true and correct on the ~~date hereof and as of each~~ Closing Date, with the same force and effect as if made on and as of ~~each 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~~ date hereof and ~~agreements hereunder and to the following additional conditions: (a) On~~ the Closing Date, respectively. Each of the Company and the Subsidiary Guarantors 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 Purchasers 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 Purchasers may approve; (2) No action shall have ~~received a legal opinion from Xxxxxxxx Chance US LLP~~been taken and no statute, ~~counsel for the Company~~rule, ~~dated~~ regulation or order shall have been enacted, adopted or issued by any governmental agency that would, as of the Closing Date, prevent the issuance of the Senior Subordinated Notes or the Note Guarantees; (3) No injunction, restraining order or order of any nature by a federal or state court of competent jurisdiction shall have been issued as of the Closing Date or, to the ~~effect that:~~best knowledge of the Company, threatened against, the Company or the Subsidiary Guarantors which would prevent the issuance of the Senior Subordinated Notes or the Note Guarantors; and (4) No stop order preventing the use of the Offering Documents, or any amendment or supplement thereto, or suspending the qualification or exemption from qualification of the Senior Subordinated Notes for sale in any jurisdiction designated by the Initial Purchasers pursuant to Section 5(f) hereof shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending, threatened or, to the Company's knowledge contemplated. (c) (1) (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or Since the date of ~~such opinion~~the latest balance sheet in the Offering Memorandum, ~~included or includes any untrue statement of a material fact or omitted or omits to state~~ there shall not have been any material ~~fact necessary in order to make the statements therein~~adverse change, or any development involving a prospective material adverse change, in the ~~light~~ assets, properties, business, results of operations, condition (financial or otherwise) or prospects, whether or not arising in the ~~circumstances under which they were made~~ordinary course of business, ~~not misleading. (ii) the Company and each~~ of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; , (ii) since the date of the latest balance sheet included in the Offering Memorandum, there shall not have been any material change, or 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 the Company and ~~each of~~ its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, ~~except~~ taken as ~~otherwise~~ a whole, from that set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) ~~the due performance by the Initial Purchasers of the agreements~~ except as set forth in ~~Section 8 hereof. In rendering any such opinion, such counsel may rely, as to matters of fact, to~~ the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto)Offering Memorandum, neither the Company nor any of its subsidiaries ~~has sustained~~ shall have any liability or obligation, direct or contingent, which is material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.;

Appears in 1 contract

Samples: Purchase Agreement (Standard Parking Ii LLC)

Appears in 1 contract

Samples: Purchase Agreement (Fpa Medical Management Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation of the~~ Initial ~~Purchasers~~ Purchasers' obligations to purchase and pay for the Notes ~~shall,~~ shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to (i) the accuracy of the representations and warranties of the Company and the Guarantor herein contained ~~herein~~ as of the date hereof and as of ~~each~~ the Closing Date, ~~as if made on and as of each Closing Date~~(ii) the absence in any certificates, opinions, written statements or letters furnished pursuant to this Section 6 to the ~~accuracy~~ Initial Purchasers or to their counsel, of any qualification or limitation not previously approved by the ~~statements of the Company’s officers made pursuant to the provisions hereof~~Initial Purchasers, to (iii) the performance by the Company and the Guarantor of ~~its covenants~~ their obligations hereunder required to be performed on or prior to the Closing Date, and ~~agreements hereunder and to~~ (iv) the following additional conditions: (a) Since the date of the latest balance sheet included in the Definitive Memorandum: (i) there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the capital stock or in the long-term debt of the Company or the Guarantor from that set forth in or contemplated by the Definitive Memorandum, (ii) the Company shall have no liability or obligation, direct or contingent, that is material to the Company and the Guarantor, taken as a whole, other than those reflected in the Definitive Memorandum; and (iii) there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the financial condition, business, properties, prospects, oil and gas reserves, net worth or results of operations of the Company and the Guarantor taken as a whole, except, in each case, as expressly described in the Definitive Memorandum. (b) The representations and warranties made by the Company and the Guarantor herein shall be true and correct on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; and the Company and the Guarantor shall have complied in all material respects with all agreements hereunder required to be performed by the Company and the Guarantor. (c) As to each Initial Purchaser, the purchase of and payment for the Notes to be purchased by such Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation, order or other restriction. (d) The Definitive Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York time, on the day following the date of this Agreement or at such later date and time as to which the Initial Purchasers may agree, and no stop order suspending the qualification or exemption from qualification of the Notes in any jurisdiction referred to in Section 4(e) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (e) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of the Notes; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company and the Guarantor, threatened against, the Company, the Guarantor or any of their respective subsidiaries before any court or arbitrator or any governmental body, agency or official that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably by expected to have a Material Adverse Effect, on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries taken as a whole. (f) On the Closing Date, the Initial Purchasers shall have received ~~a legal~~ the opinion ~~from Xxxxxxxx Chance US LLP~~of Straxxxxxxx & Xrice, L.L.P., counsel ~~for~~ to the Company, dated the Closing Date, addressed to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope ~~to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters~~ reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial ~~Purchasers to the effect that: (i) the representations and warranties of the Company~~ Purchasers' counsel, substantially as set forth in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties theretoExhibit A hereto. (g) On the Closing Date, the Initial Purchasers shall have received a certificate, dated the ~~Registration Rights Agreement executed~~ Closing Date, signed by each of the Chairman of the Board and Chief Financial Officer or the President and the Chief Financial Officer of the Company and the Guarantor, and such ~~agreement shall be~~ other certificates of executive officers as the Initial Purchasers may specify confirming the matters set forth in ~~full force~~ paragraphs (a) and ~~effect at all times from and after the Closing Date~~(b) of this Section 6. (h) On ~~or before~~ the Closing Date, the Initial Purchasers shall have received from Andrxxx & Xurtx X.X.P., an opinion, dated the Closing Date, addressed to the Initial Purchasers, with respect to the Company, the Guarantor, the Offering Memorandum, the offer, sale and ~~counsel for~~ resale of the (i) Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received from Ernst & Young LLP, and on the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP, a letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers. (j) Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received from NSA, and on the Closing Date, the Initial Purchasers shall have received from NSA, a letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers. (k) On the Closing Date, the Company and the Guarantor shall have executed and delivered the Registration Rights Agreement and the Indenture. (l) On or prior to the Closing Date, the Revised Credit Facility shall have been executed and delivered by the Company and the banks executing same. (m) Prior to the Closing Date, the Company shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers reasonably may request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, ~~documents or other information as they may have reasonably requested from the Company. All~~ opinions, ~~certificates,~~ written statements or letters ~~and documents delivered~~ furnished to the Initial Purchasers or to their counsel pursuant to this ~~Agreement will comply with the provisions hereof only if they are~~ Section 6 shall not be reasonably satisfactory in form and scope in all material respects to the Initial Purchasers and ~~counsel for~~ to their counsel, all of the Initial Purchasers' obligations hereunder may be cancelled by them at, or at any time prior to, the Closing Date. ~~The Company~~ Notice of such cancellation shall ~~furnish~~ be given to the ~~Initial Purchasers such conformed copies of such opinions~~Company and the Guarantor in writing or by telephone, ~~certificates~~telecopy, ~~letters~~telex or telegraph, ~~and documents~~ confirmed in ~~such quantities as the Initial Purchasers shall reasonably request~~writing.

Appears in 1 contract

Samples: Purchase Agreement (National Energy Group Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase ~~and pay for~~ the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each 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 are subject to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by the Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Issuers, be contemplated. No stop order suspending the sale of the Notes in any jurisdiction designated by the Initial Purchasers shall have ~~received a legal opinion from Xxxxxxxx Chance US LLP, counsel~~ been issued and no proceedings for ~~the Company, dated the Closing Date~~that purpose shall have been commenced or shall be pending or, to the ~~effect that:~~knowledge of the Issuers, shall be contemplated. (b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) ~~such counsel has no reason to believe that~~ any change, or any development involving a prospective change, in or affecting the condition (~~other than~~ financial or other), business, properties, net worth, or results of operations of the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion)~~ Trust or the ~~Final~~ Subsidiaries not contemplated by the Offering Memorandum, as which in the opinion of ~~its date~~ the Initial Purchasers, would materially adversely affect the market for the Notes, or (ii) any event or development relating to or involving the Trust or the ~~date~~ Subsidiaries or any officer or director of ~~such opinion, included or includes~~ any ~~untrue~~ of them which makes any statement of material fact made in the Offering Memorandum untrue or which, 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 Offering Memorandum in order to state a material fact required by any law to be stated therein or ~~omitted or omits 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, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the opinion of the Initial Purchasers, materially adversely affect the market for the Notes. (iic) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified Prior to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for substantially simultaneously with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not Issuers (x) ~~require~~ shall have received the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws proceeds of the ~~various states of~~ Indebtedness incurred under the ~~United States of America~~ New Credit Facility, as described in the Offering Memorandum, and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) ~~conflict~~ with ~~or result in a breach or violation of any of~~ respect to the ~~terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known~~ Acquisition Agreements all conditions to such ~~counsel~~Acquisition Agreements shall have been completed, ~~to which the Company~~ satisfied or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known waived and all parties to such ~~counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and~~Acquisition Agreements shall be, ~~after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined~~ in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy reasonable judgment of the Initial Purchasers~~’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes~~ , prepared 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Dateclose immediately. (bd) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from Xxxxxx Xxxxxx & Xxxxxxx LLP~~of Dykexx Xxxsxxx XXXC, special counsel for the Issuers dated the Closing Date and addressed to the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) ~~the representations and warranties~~ Each of the Guarantors (except Experience Management LLC ("Experience") and Venture Holdings Company LLC ("VHC")) has been duly incorporated and is validly existing as a corporation in ~~this Agreement are true~~ good standing under the laws of its jurisdiction of incorporation and ~~correct~~ each of Experience and VHC is a limited liability company duly formed and validly existing as ~~if made on~~ a limited liability company in good standing under the laws of Michigan; the Trust is validly existing as a trust under the laws of Michigan; and as each of the ~~Closing Date;~~ Guarantors (other than Experience and VHC) has the corporate power and authority, and each of Experience and VHC has the limited liability company power and authority, and the ~~Company~~ Trust has ~~performed all covenants~~ the power and ~~agreements and satisfied all conditions~~ authority, to carry on its ~~part to be performed or satisfied at or prior to the Closing Date; and (ii) subsequent to the respective dates~~ business as ~~of which information is given~~ described in the ~~Final~~ Offering Memorandum (~~exclusive of~~ and any amendment or supplement thereto)) and to own, ~~neither~~ lease and operate its properties; (ii) Each of the ~~Company nor any~~ Guarantors (other than Experience and VHC) is duly qualified and in good standing as a foreign corporation and each of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceedingExperience and VHC is duly qualified and in good standing as a limited liability company authorized to do business in each jurisdiction listed on a schedule to such opinion, and ~~there has~~ the Trust is not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken required to qualify as a ~~whole, except~~ foreign corporation or trust in ~~each case as described in or contemplated by the Final Memorandum (exclusive of~~ any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.jurisdiction;

Appears in 1 contract

Samples: Purchase Agreement (Venture Service Co)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ Offered Notes on the ~~Notes shall,~~ Closing Date will be ~~subject~~subject to the accuracy, in ~~the Initial Purchasers’ sole discretion~~all material respects, ~~to the accuracy~~ of the representations and warranties of the ~~Company contained~~ applicable Issuer herein as and of ~~the date hereof and as of each Closing Date, as if made on and as of each Closing Date~~OfficeMax herein, to the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof~~performance, ~~to the performance~~ in all material respects, by ~~the Company~~ such Issuer of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~Such Issuer’s Offered 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 Indenture Collateral of such Issuer shall have been pledged to the Indenture Trustee pursuant to the terms of the applicable Indenture. (b) The Initial Purchasers shall have received a ~~legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company~~certificate, dated as of the Closing Date, of a Regular Manager of each Issuer to the effect that such Regular Manager has carefully examined this Agreement, each Memorandum and the Transaction Documents to which such Issuer is a party and that: , to the best of such officer’s knowledge (i) since the date information is given in each Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of such ~~counsel~~ Issuer, whether or not arising in the ordinary course of business, or the ability of such Issuer to perform its obligations hereunder or under the Transaction Documents except as contemplated by each Memorandum, (ii) the representations and warranties of such Issuer set forth herein are true and correct in all material respects as of the Closing Date, as though such representations and warranties had been made on and as of such date, (iii) such Issuer has ~~no reason~~ complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents to which it is a party, at or prior to the Closing Date, (iv) the representations and warranties of such Issuer in the Transaction Documents to which it is a party are true and correct in all material respects, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that ~~(other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion)~~ the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or ~~the date of such opinion, included or includes~~ any Additional Offering Document contains an untrue statement of a material fact ~~or omitted~~ or omits 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. (iic) ~~the Company and~~ The Class A-1 Notes shall each ~~of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ have been ~~duly organized~~ rated no less than “Aa3” by Xxxxx’x and ~~are validly existing as corporations in good standing under~~ “A” by S&P, the ~~laws of their respective jurisdictions of incorporation~~ Class A-2 Notes shall each have been rated no less than “A1” by Xxxxx’x and ~~are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where~~ “A” by S&P, such ~~counsel has~~ ratings shall not have been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandumrescinded, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out no public announcement shall have been made by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any ~~perfected security interests or, to the best knowledge~~ rating agency that its rating of such ~~counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges~~ Class of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Offered Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification placed under ~~the TIA~~review. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (bd) The Initial Purchasers shall have received ~~a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers~~an opinion, dated the Closing Date, of in-house counsel to the Indenture Trustee, in form and substance satisfactory to the Initial Purchasers. (e) The Initial Purchasers shall have received legal opinions, in form and substance satisfactory to the Initial Purchasers, (i) of King & Spalding LLP, counsel to the Issuers and OfficeMax, with respect to the certain federal tax, ERISA, securities law matters and with respect to the Final Memorandum (excluding the sections entitled “Available Information About Wachovia” and “Available Information About Xxxxxx Brothers”), (ii) from Dechert LLP, counsel to the Initial Purchasers, with respect to corporate, securities law, investment company matters and with respect to the Final Memorandum (excluding the sections entitled “Available Information About Wachovia” and “Available Information About Xxxxxx Brothers”), (iii) of Dechert LLP with respect to certain ~~legal matters relating~~ “true contribution” and “non–consolidation” issues in form and substance satisfactory to ~~this Agreement and such other related matters as~~ the Initial Purchasers; and (iv) of Xxxxxxxx Leyton & Finger LLP with respect to certain matters under Delaware law. (f) The Initial Purchasers ~~may reasonably require. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx LLP~~ shall have received an opinion of Dechert LLP with respect to certain “perfection issues” in form and ~~may rely upon such certificates and other documents and information as it may reasonably request~~ substance satisfactory to ~~pass upon such matters~~the Initial Purchasers. (cg) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP~~ the Indenture Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Indenture Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dh) ~~The Company~~ Each Issuer and OfficeMax shall have ~~furnished or caused to be~~ furnished to the Initial Purchasers ~~at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ and its ~~Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations~~ counsel such further information, certificates and ~~warranties of the Company in this Agreement are true and correct~~ documents 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, the Initial Purchasers and its counsel ~~for~~ may reasonably have requested, and all proceedings in connection with 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 transactions contemplated by this Agreement ~~will comply with the provisions hereof only if they are satisfactory~~ and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers and ~~counsel for the Initial Purchasers. The Company~~ its counsel. (i) Each Issuer and OfficeMax shall ~~furnish~~ have furnished to the Initial Purchasers such ~~conformed copies of such opinions~~further information, certificates, ~~letters~~opinions or documents reasonably requested by the Initial Purchasers, including any material delivered to the Rating Agencies. (j) All documents incident hereto and ~~documents~~ to the Transaction Documents shall be reasonably satisfactory in ~~such quantities as~~ form and substance to the Initial Purchasers and its counsel, and the Initial Purchasers and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects or waived by the Initial Purchasers 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 Purchasers, this Agreement and all of the Initial Purchasers’ obligations hereunder may be canceled by the Initial Purchasers at or prior to delivery of and payment for the Offered Notes. Notice of such cancellation shall be given to the Issuers in writing, or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Samples: Purchase Agreement (Officemax Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes ~~shall,~~ to be ~~subject~~purchased by it on the Closing Date hereunder are subject to the fulfillment, in ~~the~~ such Initial ~~Purchasers’~~ Purchaser's sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each 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 to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for those purposes shall have been commenced or shall be pending or, to the knowledge of the Company, threatened. No order suspending the sale of the Notes in any jurisdiction shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, threatened. (b) At the Closing Date, the Reorganization Transactions and the Related Transactions shall have been consummated; and the Company shall have provided to the Initial Purchasers ~~shall have received a legal opinion from Xxxxxxxx Chance US LLP,~~ or counsel for the ~~Company, dated the Closing Date,~~ Initial Purchasers copies of all closing documents delivered to the ~~effect that:~~parties to the Reorganization Transactions and the Related Transactions. (c) Subsequent to the date hereof, (i) ~~such counsel has no reason to believe that~~ except as disclosed or contemplated in the Offering Memorandum, there shall not have occurred any material adverse change in the condition (~~other than~~ financial or other), business, prospects, properties, assets, net worth or results of operations of the ~~financial statements and other financial information contained therein~~Company, taken as ~~to which such counsel need express no opinion~~a whole, which, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Notes, or (ii) the ~~Final Memorandum, as of its date or the date of such opinion, included or includes~~ Offering Memorandum shall not contain any untrue statement of a material fact or ~~omitted or omits~~ omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~. (ii)~~ , if amending or supplementing the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified Offering Memorandum to ~~transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where~~ correct any such ~~counsel has been advised that the failure to be so qualified would amount to a material liability~~ misstatement or ~~disability to the Company and its subsidiaries~~omission could, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy sole judgment of the Initial Purchasers~~’ representations in Section 8 and those~~ , materially adversely affect the marketability of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateNotes. (bd) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from Xxxxxx Xxxxxx~~ of Xxxxxxxxx & ~~Xxxxxxx~~ Xxxxxxxx LLP, counsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, substantially in the form of EXHIBIT A hereto. (e) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx, counsel for the Initial Purchasers, dated the Closing ~~Date~~Date and addressed to 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, 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 mattersrequest. (cf) The Initial Purchasers shall have received ~~from PricewaterhouseCoopers LLP~~ a "cold comfort" letter ~~or letters dated~~addressed to the Initial Purchasers, ~~respectively,~~ and dated the date hereof and the Closing Date, from each of Xxxxxx Xxxxxxxx LLP and Xxxxxxxx & Xxxxxx, P.C., substantially to the effect set forth in ~~form~~ EXHIBIT B hereto. (i) There shall not have been any material change in the capital stock of the Company or any Subsidiary nor any material increase in the short-term or long-term debt of the Company or any Subsidiary from that set forth or contemplated in the Offering Memorandum; (ii) except as disclosed or contemplated by the Offering Memorandum, the Company and ~~substance satisfactory~~ the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to ~~counsel for~~ the Company and the Subsidiaries, taken as a whole; (iii) all the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; and (iv) the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the Chairman and Chief Executive Officer and the chief accounting officer of the Company (or such other officers as are reasonably acceptable to the Initial Purchasers), to the effect set forth in this Section 7(g) and in Section 7(h) hereof. (dh) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of their respective agreements herein contained and required to be performed or complied with by them hereunder at or prior to the Closing Date. (i) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to any class of Notes of the Company (including the Notes), or (ii) it is reviewing its ratings assigned to any class of Notes of the Company (including the Notes) with a view to possible downgrading, with negative implications or direction not determined. (j) The Notes shall have been approved for trading on PORTAL. (k) The Company shall have furnished or caused to be furnished to the Initial Purchasers ~~at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ such further certificates and ~~its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct~~ customary closing documents 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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~~requested. All such opinions, certificates, letters and other documents ~~delivered pursuant to this Agreement~~ will ~~comply~~ be in compliance with the provisions hereof only if they are reasonably satisfactory in ~~all material respects~~ form and substance to the Initial ~~Purchasers~~ Purchasers. Any certificate or document signed by any officer of the Company and delivered to the Initial Purchasers, or to counsel for the Initial Purchasers~~. The~~ , shall be deemed a representation and warranty by the Company ~~shall furnish~~ to the Initial Purchasers ~~such conformed copies of such opinions, certificates, letters, and documents in such quantities~~ as to the ~~Initial Purchasers shall reasonably request~~statements made therein.

Appears in 1 contract

Samples: Purchase Agreement (Labranche & Co Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from Xxxxxxxx Chance US LLP~~the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Xxxxxxx, Keevican & Xxxxx, counsel for the ~~Company~~Company in form and substance satisfactory to counsel for the Initial Purchaser, ~~dated the Closing Date,~~ substantially to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as Each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act) have been~~ material Subsidiaries is duly ~~organized and are~~ incorporated, validly existing ~~as corporations~~ and in good standing under the laws of ~~their~~ its respective ~~jurisdictions~~ jurisdiction of incorporation and ~~are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ has all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the Final Memorandum. Each of the Company and the material Subsidiaries is duly qualified as a foreign corporation and is in good standing in the jurisdictions set forth below such Subsidiaries' name on Schedule A attached to such opinion. (ii) The Company has the authorized and issued capital stock set forth in the Final Memorandum. To the knowledge of Doepken Keevican & Xxxxx, the Subsidiaries constitute all the subsidiaries of the Company and the Company ~~has corporate power to enter into this Agreement,~~ will own the ~~Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all~~ percentage of the issued and outstanding stock (or other equity securities of each of the Subsidiaries set forth on Schedule 2 hereto). All of the outstanding shares of capital stock of ~~each~~ the Company and the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights; all of the outstanding shares of capital stock of the Subsidiaries are owned, directly or indirectly, by the Company~~’s significant subsidiaries~~, ~~except~~ free and clear of all security interests perfected, or otherwise, and free and clear of all other liens, encumbrances, equities and claims or restrictions on transferability or voting in each case other than a pledge of the shares of such Subsidiary pursuant to the provisions of the New Credit Facility. (iii) Except as ~~otherwise~~ set forth in the Final Memorandum, (A) to the knowledge of such counsel no options, warrants or other rights to purchase from the Company or any Subsidiary shares of capital stock or ownership interests in the Company or any Subsidiary are ~~owned beneficially~~ outstanding, (B) no agreements or other obligations of the Company or any Subsidiary to issue, or other rights to cause the Company or any Subsidiary to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company or any Subsidiary are outstanding and (C) no holder of securities of the Company or any Subsidiary is entitled to have such securities registered under a registration statement filed by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus Subsidiaries pursuant to the ~~Act and the Exchange Act and the respective rules and regulations thereunder;~~Registration Rights Agreement. (iv) The Company has all requisite corporate power and authority to execute, deliver and perform its respective obligations under this Agreement, the ~~execution and delivery of this Agreement have been duly authorized by all necessary corporate action of~~ Indenture, the ~~Company~~ Notes, the Exchange Notes and the ~~Agreement~~ Private Exchange Notes; the Indenture is in sufficient form for qualification under the TIA; the Indenture has been duly ~~executed~~ and ~~delivered by the Company; (v) the execution and delivery of the Indenture have been duly~~ validly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the ~~Indenture will be a legal,~~ valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency, moratorium~~ or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect). The Indenture meets~~ and (ii) general principles of equity and the ~~requirements for qualification under~~ discretion of the ~~TIA~~court before which any proceeding therefor may be brought. (viv) The Global Note (as such term is defined in the ~~Notes have~~ Indenture) is, and each other Note, when issued, will be, in the form contemplated by the Indenture. The Global Note and each other Note has been duly and validly authorized by ~~all necessary corporate action of~~ the Company ~~and, on~~ and ~~as of the Closing Date, the Notes will have been~~ when duly executed and delivered by the Company and, in the case of the Global Note, when paid for by the Initial Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the ~~Trustee~~Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture~~; no holder~~ , and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of ~~securities~~ equity and the discretion of the ~~Company has~~ court before which any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement;proceeding therefor may be brought. (~~vii~~vi) ~~the~~ The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes ~~are~~ have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy~~, reorganization~~, insolvency, ~~moratorium~~ reorganization or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect)~~and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought. (~~viii~~vii) ~~the~~ The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial ~~Purchasers~~Purchaser), will ~~be a legal,~~ constitute the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject, as to enforcement of remedies, to applicable~~ i) bankruptcy~~, reorganization~~, insolvency, ~~moratorium~~ reorganization or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect~~ and ~~except that~~ (ii) general principles of equity and the discretion of the court before which any ~~rights to indemnity or contribution thereunder~~ proceeding therefor may be ~~limited by federal and state~~ brought. No holder of securities ~~laws and public policy considerations). (ix) the execution and delivery by~~ of the Company ofnor COMFORCE Corporation, ~~and~~ nor any of the ~~performance by~~ Subsidiaries will be entitled to have such securities registered under the ~~Company of its obligations under, this Agreement,~~ registration statement required to be filed pursuant to the Registration Rights Agreement. (viii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of transactions contemplated hereby; this Agreement and the consummation by the Company of the ~~other~~ transactions ~~herein~~ contemplated ~~do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as~~ hereby have been ~~obtained or made (~~duly and ~~specified in such opinion) or such as may be required~~ validly authorized, executed and delivered by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and ~~public officials and~~(assuming the due authorization, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement by the Initial Purchaser) constitutes a valid and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any legally binding agreement of the Company~~’s securities by~~ , enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy insolvency, reorganization or other similar laws now or hereafter in effect relating to creditors rights generally and (ii) general principles of equity and the discretion of the court before which any ~~“nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act~~proceeding therefor may be bought. (fix) The ~~Indenture shall have been executed and delivered by all the parties thereto. (g) On the Closing Date~~Indenture, the ~~Initial Purchasers shall have received~~ Notes (when issued, authorized and delivered), the Exchange Notes (when issued, authorized and delivered) and 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. (h) On or before the Closing Date, 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 satisfactory conform in all material respects to the ~~Initial Purchasers~~ descriptions thereof contained in the Final Memorandum and ~~counsel for~~ the ~~Initial Purchasers. The Company shall furnish to~~ Statements in the ~~Initial Purchasers such conformed copies~~ Final Memorandum under "Description of ~~such opinions~~Notes" and "Notes Exchange Offer and Registration Rights" insofar as they describe the provisions of the documents and instruments therein described, ~~certificates, letters, and documents~~ constitute fair summaries thereof in ~~such quantities as the Initial Purchasers shall reasonably request~~all material respects.

Appears in 1 contract

Samples: Purchase Agreement (Comforce Corp)

Conditions of the Initial Purchasers’ Obligations. The ------------------------------------------------- obligation of the Initial ~~Purchasers~~ Purchaser to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ its sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~a legal opinion from Xxxxxxxx Chance US~~ the opinion, dated as of the Closing Date and addressed to the Initial Purchaser, of Xxxxx Xxxxxx & Xxxxxx LLP, counsel for the Company, in form and substance satisfactory for counsel to the Initial Purchaser, dated the Closing Date, substantially to the effect that: (i) ~~such counsel~~ The Company has ~~no reason to believe that (other than the financial statements~~ been duly incorporated and ~~other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as~~ each of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act) have been duly organized and~~ Subsidiaries that are corporations or limited liability companies are validly existing ~~as corporations~~ and is in good standing as a corporation or limited liability company, as applicable, under the laws of ~~their respective jurisdictions~~ its jurisdiction of incorporation ~~and are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ or organization, with all ~~other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material~~ requisite corporate or limited liability ~~or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full~~ company power and authority to ~~own, lease and operate their respective~~ own its properties and ~~assets~~ conduct its business as now conducted, and ~~conduct their respective businesses~~ as described in the Final Memorandum~~, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and~~ . (ii) All of the ~~Notes to be carried out by it; all of the issued and~~ outstanding shares of capital stock of ~~each~~ the Company and those Subsidiaries that are corporations as of the ~~Company’s significant subsidiaries~~Closing Date are duly authorized and validly issued, ~~except~~ are fully paid and nonassessable and were not issued in violation of any statutory preemptive rights; all of the outstanding ownership interests of all Subsidiaries that are limited liability companies will be duly authorized and validly existing and will not have been issued in violation of any statutory preemptive rights, or preemptive rights under the operating agreement or articles of organization of such limited liability companies. Except as ~~otherwise~~ set forth in the Final Memorandum, to our knowledge, there are ~~owned beneficially by~~ no outstanding (i) options, warrants or other rights to purchase from the Company ~~free~~ and ~~clear~~ the Subsidiaries, (ii) agreements or other obligations of the Company or any ~~perfected security interests or~~of the Subsidiaries to issue or (iii) other rights to convert any obligation into, to or exchange any securities of, shares of capital stock of, or other equity securities of, the ~~best knowledge~~ Company or any of ~~such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments;~~the Subsidiaries. (iii) ~~the statements set forth~~ The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the ~~heading “Description of~~ Notes” . The Notes, when issued, will be substantially in the ~~Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and~~ form contemplated by the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement . The Notes have been duly and validly authorized ~~by all necessary corporate action of the Company~~ and ~~the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and,~~ when ~~duly~~ executed and delivered by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement, will constitute valid and legally binding obligations of the Company, will entitle the holders to the benefits of the Indenture and will be enforceable against the Company in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles. (iv) The Global Note (as such term is defined in the Indenture) is substantially in the form contemplated by the Indenture. (v) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Indenture. The Indenture meets the requirements for qualification under the TIA. The Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming ~~the~~ due authorization, execution and delivery thereof by the Trustee~~), the Indenture will be~~ ) constitutes a ~~legal,~~ valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms (subject~~terms, except as ~~to enforcement of remedies, to applicable~~ the enforceability thereof may be limited by bankruptcy~~, reorganization~~, insolvency, ~~moratorium~~ fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors’ ' rights generally ~~from time to time in effect). The Indenture meets the requirements for qualification under the TIA~~and by general equitable principles. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private The Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes ~~and the Private Exchange Notes are~~ have been duly executed and delivered by the Company and authenticated by the Trustee in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming ~~the~~ due authorization, execution and delivery ~~of the Indenture~~ thereof by the ~~Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture~~Trustee), will be constitute the ~~legal,~~ valid and legally binding obligations of the Company, will entitle the holder to the benefits of the Indenture, and will be enforceable against the Company in accordance with their ~~terms (subject~~terms, except as ~~to enforcement of remedies, to applicable~~ the enforceability thereof may be limited by bankruptcy~~, reorganization~~, insolvency, ~~moratorium~~ fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors’ ' rights generally ~~from time to time in effect)~~and by general equitable principles. (~~viii~~vii) ~~the~~ The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement~~; the~~ . The Registration Rights Agreement has been duly ~~authorized by the Company and~~and validly authorized, ~~when duly~~ executed and delivered by the Company (and, assuming due authorization, execution and delivery thereof by the Initial ~~Purchasers)~~Purchaser, ~~will be~~ constitutes a ~~legal,~~ valid and legally binding agreement of the ~~Company,~~ Company enforceable against the Company in accordance with its ~~terms (subject~~terms, except as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder the enforceability thereof may be limited by ~~federal~~ bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors' rights generally and ~~state securities~~ by general equitable principles. (viii) Each of the Company and the Subsidiary Pledgor, as applicable, has all requisite corporate power and authority to execute, deliver and perform its obligations under the Pledge Agreement, dated the Closing Date, whereby the Company and the Subsidiary Pledgor pledge all of their Pledged Stock to the Collateral Agent for the benefit of the holders of the Notes. The Pledge Agreement has been duly and validly authorized, executed and delivered by the Company and the Subsidiary Pledgor and constitutes a valid and legally binding agreement of the Company and the Subsidiary Pledgor, as applicable, enforceable against them in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or other similar laws affecting the enforcement of creditors' rights generally and ~~public policy considerations)~~by general equitable principles. (ix) Assuming receipt of consideration therefor and that the ~~execution~~ Subsidiary Guarantees are entered into for a valid corporate purpose, each of the Subsidiary Guarantors has all requisite corporate power and ~~delivery~~ authority to execute, deliver and perform its obligations under its respective Subsidiary Guaranty. Each Subsidiary Guaranty has been duly and validly authorized, executed and delivered by the applicable Subsidiary. (x) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly and validly authorized, executed and delivered by the Company ~~of,~~ and the Subsidiaries. (xi) No consent, approval, authorization or order of any court or governmental agency or body or third party is required for the execution, delivery or performance by the Company or any Subsidiary of ~~its obligations under,~~ this Agreement, the Registration Rights ~~Agreement,~~ Agreement (except as may be required by the ~~Indenture and the Notes~~Securities Act, the Exchange ~~Notes~~ Act and the ~~Private Exchange Notes~~TIA as contemplated therein), the ~~issuance~~Indenture, ~~offering and sale of~~ the ~~Notes to~~ Subsidiary Guaranties or the ~~Initial Purchasers~~ Pledge Agreement, or the consummation by the Company ~~pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation~~ or any of the ~~other~~ Subsidiaries party thereto, as applicable, of the transactions ~~herein~~ contemplated ~~do not (x) require~~ hereby or thereby that are to be completed prior to or on the ~~consent, approval, authorization, registration or qualification of or with any governmental authority~~date hereof, except such as have been obtained or ~~made (and specified~~ disclosed in ~~such opinion)~~ the Final Memorandum or ~~such~~ as may be required by ~~the~~ state securities ~~or Blue Sky laws of the various states of the United States of America~~ laws. (xii) The execution, delivery and ~~other U.S. jurisdictions in connection with the offer and sale of the Notes~~ performance by the ~~Initial Purchasers~~ Company and ~~except those that may be required by~~ the ~~Act or~~ Subsidiaries party thereto, as applicable, of this Agreement, the ~~TIA in connection with the exchange offer contemplated by~~ Indenture, the Registration Rights Agreement, ~~or (y)~~ the Pledge Agreement and the Subsidiary Guaranties and the consummation by the Company and the Subsidiaries party thereto of the transactions contemplated hereby and thereby will not conflict with or constitute or result in a breach of or a default under (or an event which with notice or passage of time or both would constitute a default under) any material contract (relying as to materiality solely upon a certificate of officers of the Company identifying such contracts) or violation of any of the ~~terms and provisions of, or constitute a default under, any indenture, mortgage, deed~~ certificate of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents incorporation or by-laws (or similar organizational document) of the Company or any of ~~its significant subsidiaries~~the Subsidiaries, or or, to such counsel's knowledge, violate any ~~statute or any~~ statute, judgment, decree, order, rule or regulation ~~of any court or other governmental authority or any arbitrator known to such counsel and~~ applicable to the Company or ~~its significant subsidiaries;~~any of the Subsidiaries or any of their respective properties or assets. (xxiii) ~~the Company~~ To such counsel's knowledge, there is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or ~~threatened~~ threatened, any action, suit, proceeding, inquiry or investigation to which the Company or any of ~~its subsidiaries~~ the Subsidiaries is a party or to which the property or assets of the Company or any of ~~its subsidiaries~~ the Subsidiaries are subject, before or brought by any court, arbitrator or governmental agency or body which are reasonably likely to, individually or in the aggregate, have a Material Adverse Effect or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the Transactions. (xiv) The use of the proceeds of the Notes by the Company, as described in the Final Memorandum under the caption "Use of Proceeds," will not violate Regulation T, U or X of the Board of Governors of the Federal Reserve System. (xv) There are no legal or governmental proceedings to which the Company or any Subsidiary is ~~subject that~~ a party which would be required to be described in a prospectus forming part of a registration statement filed with the Commission pursuant to the Securities Act that are not described in the ~~Final~~ Preliminary Memorandum ~~or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in~~ and the Final Memorandum. (~~xii~~xvi) ~~commencing with the Company’s taxable year ended December 31, 1998,~~ Neither the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act nor any of the ~~Notes~~ Subsidiaries is ~~required in connection with~~ or immediately after the sale of the Notes to ~~the Initial Purchasers as contemplated by this Agreement~~ be sold hereunder and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of ~~laws of any jurisdiction other than~~ the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection proceeds from such sale (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given described in the Final Memorandum ~~(exclusive~~ under the caption "Use of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (eProceeds") Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, will be an "investment company" as such term is defined ~~for purposes~~ in the Investment Company Act of 1940, as amended, and the rules and regulations thereunder. (xvii) The Notes satisfy the eligibility requirements of Rule ~~436(g)(2~~144A(d)(3) under the Securities Act. (fxviii) The ~~Indenture shall have been executed~~ statements in the Final Memorandum under the caption "Description of Notes" and ~~delivered by all the parties thereto. (g) On the Closing Date, the Initial Purchasers shall have received the~~ "Exchange Offer and 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. (h) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further certificates, documents or other information Rights," insofar as they ~~may have reasonably requested from the Company. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with~~ describe the provisions ~~hereof only if they are satisfactory~~ of the documents and instruments therein described, constitute fair summaries thereof accurate 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 shall reasonably requestrespects.

Appears in 1 contract

Samples: Purchase Agreement (Mediaamerica Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers ~~to purchase and pay for the Notes shall, be subject, in the Initial Purchasers’ sole discretion,~~ hereunder are subject to the ~~accuracy~~ accuracy, when made and again on the Closing Date as if made again on and as of such date, of the representations and warranties of the Company and the Guarantors contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors of ~~its covenants and agreements hereunder~~ their obligations hereunder, and to each of the following additional terms and conditions: (a) On The Offering Memorandum shall have been printed and copies made available to you not later than 5:00 p.m., New York City time, within two business days following the date of this Agreement, or at such later date and time as you may approve in writing. (b) No Initial Purchaser shall have discovered and disclosed to the Company on or prior to the Closing ~~Date~~Date that the Offering Memorandum or any amendment or supplement thereto contains an untrue statement of a fact which, in the ~~Initial Purchasers shall have received a legal~~ opinion ~~from Xxxxxxxx Chance US~~ of Xxxxxx & Xxxxxxx LLP, counsel for the ~~Company~~Initial Purchasers, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a is material ~~fact or omitted~~ or omits to state ~~any~~ a fact which, in the opinion of such counsel, is material ~~fact~~ and necessary ~~in order~~ to make the statements ~~therein~~contained in the Offering Memorandum, in the light of the circumstances under which they were made, not misleading. (iic) ~~the Company~~ All corporate proceedings and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other ~~jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability~~ legal matters incident to the ~~Company~~ authorization, form and ~~its subsidiaries, taken as a whole; the Company and each~~ validity of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Series A Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this AgreementGuarantees, the Registration Rights Agreement, the Supplemental Indenture and the ~~Notes~~Offering Memorandum, ~~the Exchange Notes~~ and ~~the Private Exchange Notes, the issuance, offering and sale of the Notes~~ all other legal matters relating to ~~the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of~~ this Agreement and the ~~consummation of the other~~ transactions ~~herein~~ contemplated ~~do not (x) require the consent~~hereby, ~~approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may~~ shall be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent reasonably satisfactory in ~~form and scope~~ all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (d) Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), special counsel to the ~~opinion~~ Company, and Xxxxxx X. Xxxxx, Assistant Corporate Secretary and General Counsel of ~~Xxxxxxx LLP. An opinion of Xxxxxxx LLP~~ the Company, each shall ~~be delivered~~ have furnished to the Initial Purchasers their written opinions addressed to the Initial Purchasers and ~~counsel for~~ dated the Closing Date, in the form provided separately to the Initial Purchasers ~~covering matters reasonably requested~~ on the date hereof, with such changes, if any, as may be mutually agreed by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Dateparties. (be) The Initial Purchasers shall have received ~~a legal opinion~~ from ~~Xxxxxx~~ Xxxxxx & Xxxxxxx ~~LLP, counsel for the Initial Purchasers~~LLP such opinion or opinions, dated the Closing Date, with respect to ~~certain legal matters relating to this Agreement~~ the issuance and ~~such~~ sale of the Series A Notes, the Offering Memorandum and other related matters as the Initial Purchasers may reasonably require~~. In rendering such opinion~~. (f) The Company shall issue a notice of redemption for its 2008 Notes on the date hereof, ~~Xxxxxx Xxxxxx & Xxxxxxx LLP~~ or promptly hereafter. (g) The Company, the Guarantors and the Trustee shall have entered into the Supplemental Indenture and the Initial Purchasers shall have received ~~and may rely upon such certificates and other documents and information~~ counterparts, conformed as ~~it may reasonably request to pass upon such matters~~executed, thereof. (ch) The Company, the Guarantors and the Initial Purchasers shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts, conformed as executed, thereof. (i) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers LLP a letter or~~ PricewaterhouseCoopers, LLP, independent certified public accountants, letters ~~dated~~addressed to the Company and the Initial Purchasers substantially in the form heretofore approved by Xxxxxx Brothers Inc., ~~respectively,~~ and dated the date hereof and the Closing Date, (i) confirming that they are independent accountants as required by the Securities Act and its Rules and Regulations or under the rules of the American Institute of Certified Public Accountants, as applicable, (ii) stating, as of the date of each letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in ~~form~~ the Offering Memorandum, as of a date not more than five business days prior to the date of each letter), the procedures and ~~substance~~ findings of such firm with respect to the financial information and other matters covered by the letter delivered concurrently with this Agreement and (iii) with respect to the letter delivered on the Closing Date, confirming the procedures and findings set forth in the letter delivered concurrently with this Agreement; such letters shall be reasonably satisfactory to ~~counsel for the Initial Purchasers.~~Xxxxxx Brothers Inc. (dj) The Company shall have furnished ~~or caused to be furnished~~ to the Initial Purchasers at a certificate, dated as of the Closing Date, of a ~~certificate of its Chairman of the Board, its~~ Vice President ~~or its Chief Executive Officer~~ and its Chief Financial Officer ~~satisfactory to the Initial Purchasers to the effect that:~~ or Treasurer stating that (i) the representations and warranties (after giving effect to all materiality qualifiers therein) of the Company in this Agreement and the Guarantors in Section 2 are true and correct as ~~if made on~~ of such Closing Date and as giving effect to the consummation of the ~~Closing Date~~transactions contemplated by this Agreement; ~~and the Company 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; and~~ (ii) ~~subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither~~ the Company ~~nor~~ and each Guarantor has complied in all material respects with all of its agreements contained herein; and (iii) the conditions set forth in Sections 8(k) and 8(l) of this Agreement have been fulfilled. (k) None of the Company or any of its subsidiaries ~~has sustained~~ shall have sustained, since the date of the latest audited financial statements included in the Offering Memorandum, (i) any ~~material~~ loss or interference with ~~their respective businesses or properties~~ its business from fire, ~~flood~~explosion, ~~hurricane, accident~~ flood or other calamity, whether or not covered by insurance, or from any labor dispute or ~~any legal~~ court or governmental ~~proceeding~~action, ~~and~~ order or decree, otherwise than as set forth or contemplated in the Offering Memorandum or (ii) since such date, there ~~has~~ shall not have been any ~~materially adverse change (including, without limitation, a~~ change in ~~management~~ the capital stock or ~~control~~long-term debt of the Company, or any Material Adverse Effect, otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), ~~or development involving a prospective materially adverse change~~is, in the ~~condition (financial or otherwise)~~reasonable, ~~management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ good faith judgment of the ~~Company~~ Initial Purchasers, so material and adverse as to make it impracticable or ~~any~~ inadvisable to proceed with the payment for and delivery of ~~its subsidiaries, taken as a whole, except~~ the Series A Notes being delivered on such Closing Date on the terms and in ~~each case as described~~ the manner contemplated in ~~or contemplated by~~ the ~~Final Memorandum (exclusive of any amendment or supplement thereto)~~Offering Memorandum. (el) Subsequent to the execution and delivery of this Agreement ~~and prior to the Closing Date, there~~ (i) no downgrading shall ~~not~~ have occurred ~~any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change,~~ in the rating accorded ~~any of~~ the Company’s 's debt securities by any “"nationally recognized statistical rating organization”, ," as ~~such~~ that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company's debt securities. (fm) The ~~Indenture~~ Series A Notes shall have been ~~executed and delivered~~ designated for trading on the PORTAL Market; provided that the failure of the Series A Notes to be so listed shall not be due to any action taken or failure to act by ~~all~~ the ~~parties thereto~~Initial Purchasers. (gn) On Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by federal or state authorities; (iii) the United States shall have become directly engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such), in each case (i) through (iv), as to make it, in the judgment of the Initial Purchasers, impracticable or inadvisable to proceed with offering or delivery of the Series A Notes being delivered on the Closing ~~Date,~~ Date on the ~~Initial Purchasers shall have received~~ terms and in the ~~Registration Rights Agreement executed by~~ manner contemplated in the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date, 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 CompanyOffering Memorandum. All opinions, ~~certificates~~letters, ~~letters~~ evidence and ~~documents delivered pursuant to~~ certificates mentioned above or elsewhere in this Agreement ~~will comply~~ shall be deemed to be in compliance with the provisions hereof only if they are in form and substance 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 shall reasonably request~~.

Appears in 1 contract

Samples: Purchase Agreement (Ball Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ several obligations of the Initial Purchasers to purchase ~~and pay for~~ the Notes shall, be subject, in the Initial Purchasers’ sole discretion, to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each 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 Firm Debentures hereunder ~~and~~ are subject to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the use of the Offering Memorandum or any amendment or supplement thereto, or any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Company, be contemplated. No stop order suspending the sale of the Debentures in any jurisdiction designated by the Initial Purchasers shall have ~~received a legal opinion from Xxxxxxxx Chance US LLP~~been issued and no proceedings for that purpose shall have been commenced or shall be pending or, ~~counsel for~~ to the knowledge of the Company, ~~dated the Closing Date,~~ shall be contemplated. (b) Subsequent to the ~~effect that:~~ effective date of this Agreement, there shall not have occurred (i) ~~such counsel has no reason to believe that~~ any change, or any development involving a prospective change, in or affecting the condition (~~other than~~ financial or other), business, prospects, properties, net worth or results of operations of the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion)~~ Company or the ~~Final~~ Subsidiaries not contemplated by the Offering Memorandum, as which in the opinion of the Initial Purchasers, would materially adversely affect the market for the Debentures, or (ii) any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Offering Memorandum untrue or which, in the opinion of the Company and its ~~date~~ counsel or the ~~date~~ Initial Purchasers and their counsel, requires the making of ~~such opinion, included~~ any addition to or ~~includes any untrue statement of~~ change in the Offering Memorandum in order to state a material fact required by any law to be stated therein or ~~omitted or omits to state any material fact~~ necessary in order to make the statements ~~therein~~therein not misleading, if amending or supplementing the Offering Memorandum to reflect such event or development would, in the light of the circumstances under which they were made, not misleading. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy opinion of the Initial Purchasers~~’ representations in Section 8 and those of~~ , materially adversely affect the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel market for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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 mattersDebentures. (c) The Initial Purchasers shall have received ~~from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and~~ on the Closing ~~Date~~Date an opinion of Calfxx, ~~in form and substance satisfactory to~~ Xxlter & Grisxxxx XXX, counsel for the ~~Initial Purchasers. (d) The Company shall have furnished or caused to be furnished~~ Company, dated the Closing Date and addressed to the Initial ~~Purchasers at the Closing a certificate of its Chairman of the Board~~Purchasers, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers~~ to the effect that: (i) The Incorporated Documents (except for the ~~representations~~ financial statements and ~~warranties~~ the notes thereto and the schedules and other financial and statistical data included therein, as to which such counsel need not express any opinion), at the time they were filed, complied as to form in all material respects with the requirements of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; andExchange Act; (ii) ~~subsequent~~ The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to ~~the respective dates~~ own, lease and operate its properties and to conduct its business as ~~of which information is given~~ described in the ~~Final~~ Offering Memorandum (~~exclusive of~~ and any amendment or supplement thereto), ~~neither~~ and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure to so register or qualify does not have a Material Adverse Effect; (iii) Each Material Subsidiary (as hereinafter defined) is a corporation duly incorporated and validly existing and in good standing under the laws of the jurisdiction of its organization, with full corporate power and authority to own, lease, and operate its properties and to conduct its business as described in the Offering Memorandum (and any amendment or supplement thereto); each Material Subsidiary is duly registered and qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify or to be in good standing would not have a Material Adverse Effect; and all the outstanding shares of capital stock of each of the Material Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and are owned of record by the Company ~~nor~~ directly, or indirectly through one of the other Material Subsidiaries, free and clear of any perfected security interest or, to such counsel's knowledge, any other lien, adverse claim, equity or other encumbrance, except as disclosed in, or contemplated by, the Offering Memorandum (or any amendment or supplement thereto); (iv) The Company has all necessary corporate power and authority to execute and deliver this Agreement and the Registration Rights Agreement and to issue, sell and deliver the Debentures to be sold by it to the Initial Purchasers as provided herein, and this Agreement and the Registration Rights Agreement have each been duly authorized, executed and delivered by the Company and each constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforcement of rights to indemnity and contribution under each agreement may be limited by Federal or state securities laws or principles of public policy and except to the extent that enforceability of each agreement is subject to (i) applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditors' rights generally and (ii) general principles of equity; (v) The Indenture has been duly and validly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, is a valid and binding agreement of the Company, enforceable in accordance with its terms, except to the extent that enforceability thereof is subject to (i) applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditors' rights generally and (ii) general principles of equity; (vi) The Debentures have been duly and validly authorized by the Company and when executed by the Company in accordance with the Indenture and, assuming due authentication of the Debentures by the Trustee, upon delivery to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, except to the extent that enforceability thereof is subject to (i) applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting creditors' rights generally and (ii) general principles of equity; (vii) The shares of Common Stock issuable upon conversion of the Debentures have been duly authorized and reserved for issuance and, when issued and delivered upon conversion of the Debentures, in accordance with the terms thereof, will be validly issued, fully paid and nonassessable and will be free of any (A) preemptive rights under the Amended and Restated Certificate of Incorporation of the Company or the Delaware General Corporation Law or (B) to the best knowledge of such counsel after reasonable inquiry, similar rights; (viii) The authorized capital stock of the Company is as set forth under the caption "Capitalization" in the Offering Memorandum; and the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Offering Memorandum under the caption "Description of Capital Stock"; (ix) All the shares of capital stock of the Company outstanding prior to the issuance of the Debentures to be issued and sold by the Company hereunder have been duly authorized and validly issued, are fully paid and nonassessable and were issued and sold in compliance with all applicable Federal and state securities laws; (x) No consent, approval, authorization or other order of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company or any Subsidiary (except such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Debentures, or such as may be required to qualify the Indenture and, if necessary, the Guarantees under the 1939 Act, and such as may be required in connection with the performance by the Company of its ~~subsidiaries has sustained~~ obligations under the Registration Rights Agreement, as to which counsel need not express any ~~material loss~~ opinion) for the valid issuance and sale of the Debentures to the Initial Purchasers as contemplated by this Agreement; (xi) Neither the offer, sale or ~~interference~~ delivery of the Debentures, nor the issuance of Common Stock upon conversion of the Debentures in accordance with ~~their respective businesses~~ the terms of the Debentures, nor the execution, delivery or ~~properties from fire~~performance by the Company of this Agreement, ~~flood~~the Registration Rights Agreement or the Indenture, ~~hurricane~~the execution, ~~accident~~ delivery or performance of the Guarantee Agreement by the Guarantors, nor compliance by the Company and the Guarantors with the provisions hereof or thereof, nor consummation by the Company and the Guarantors of the transactions contemplated hereby or thereby, conflicts or will conflict with or constitutes or will constitute a breach of, or a default under the certificate or articles of incorporation or bylaws or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations organizational documents of the Company or any of the Subsidiaries or any agreement, indenture, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective properties is bound which is material to the Company and its ~~subsidiaries,~~ Subsidiaries taken as a ~~whole~~whole and that is an exhibit to any Incorporated Document, ~~except~~ or to the knowledge of such counsel will result in ~~each case as described in~~ the creation or ~~contemplated by the Final Memorandum (exclusive~~ imposition of any ~~amendment~~ lien, charge or ~~supplement thereto). (e) Subsequent to~~ encumbrance upon any property or assets of the ~~execution and delivery~~ Company or any of ~~this Agreement and prior to~~ the ~~Closing Date, there shall not have occurred any downgrading~~Subsidiaries, nor ~~shall~~ will any ~~notice have been given~~ such action result in any violation of any ~~intended~~ existing law, or ~~potential downgrading or of~~ any ~~review for a possible change that does not indicate the direction of the possible change~~regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws and, in the ~~rating accorded~~ case of the Registration Rights Agreement, the Act, the Exchange Act and the 1939 Act), judgment, injunction, order or decree known to such counsel, and applicable to the Company, the Subsidiaries or any of their respective properties; (xii) To the knowledge of such counsel, (A) there are no legal or governmental proceedings pending or threatened against the Company or any of the ~~Company’s securities by~~ Subsidiaries, or to which the Company or any ~~“nationally recognized statistical rating organization”~~of the Subsidiaries, ~~as such term is defined for purposes~~ or any of ~~Rule 436(g)(2)~~ their property, are subject, which are of the type that would be required to be described in the Offering Memorandum if it were a prospectus included in a registration statement on Form S-3 under the ~~Act.~~Act or in any of the Incorporated Documents but are not so described as required and (B) there are no agreements, contracts, indentures, leases or other instruments, that are of the type that would be required to be described in the Offering Memorandum if it were a prospectus included in a registration statement on Form S-3 under the Act or in any of the Incorporated Documents but are not so described as required, or that are required to be filed as an exhibit to any of the Incorporated Documents that are not so filed as required; (fxiii) ~~The~~ No registration of the Debentures under the Act nor qualification of the Indenture ~~shall have been executed and delivered by all~~ or the ~~parties thereto. (g) On~~ Guarantees under the ~~Closing Date,~~ 1939 Act is required for the sale of the Debentures to the Initial Purchasers ~~shall have received~~ as contemplated in this Agreement or for the ~~Registration Rights Agreement executed~~ Exempt Resales (assuming (A) that all representations and warranties made by ~~the Company and such agreement shall be in full force and effect at all times from and after the Closing Date. (h) On or before the Closing Date,~~ 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 Company in this Agreement ~~will comply with~~ and in the ~~provisions hereof only if they~~ Offering Memorandum are ~~satisfactory in all material respects~~ true, correct and accurate (including but not limited to the representations by the Initial Purchasers and ~~counsel for~~ the ~~Initial Purchasers. The~~ Company ~~shall furnish to~~ regarding the ~~Initial Purchasers such conformed copies~~ absence of ~~such opinions, certificates, letters, and documents~~ general solicitation in ~~such quantities as the Initial Purchasers shall reasonably request.~~connection with the

Appears in 1 contract

Samples: Purchase Agreement (NCS Healthcare Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ ------------------------------------------------- obligations of the Initial Purchasers to purchase and pay for the ~~Notes shall,~~ Securities shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the ~~representations~~ rep- resentations and warranties of made herein on the ~~Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements~~ part of the Company~~’s officers made pursuant to the provisions hereof~~, to the performance by the Company of its ~~covenants and agreements~~ obligations to be performed hereunder prior to the Closing Date, and to the following ~~additional~~ conditions: ~~(a) On~~ a. The Company shall have furnished to the ~~Closing Date~~Initial Purchaser the opinion of _________________, the ~~Initial Purchasers shall have received a legal opinion from Xxxxxxxx Chance US LLP, counsel for~~ Counsel of the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company ~~and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been~~ is a corporation duly organized and ~~are~~ validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions of incorporation~~ Missouri and ~~are~~ has due corporate power and authority to own its properties and conduct its business as described in the Offering Memorandum Prospectus, and is duly qualified to ~~transact business as foreign corporations and~~ conduct in __________ the businesses in which it is engaged in those States, which are the only States in ~~good standing under the laws of all other jurisdictions where such counsel has been advised that the failure~~ which it is required to be so ~~qualified would amount to a material liability or disability to~~ qualified; (ii) the Company ~~and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have~~ has full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and execute the Indenture and to ~~carry out all~~ issue the ~~terms~~ Securities thereunder, and ~~provisions hereof~~ the Indenture has been duly authorized, executed and ~~thereof and of the Notes to be carried out~~ delivered by ~~it; all of the issued and outstanding shares of capital stock of each of~~ the Company~~’s significant subsidiaries~~, ~~except as otherwise set forth in the Final Memorandum, are owned beneficially~~ and constitutes a valid and legally binding instrument by the Company ~~free and clear of any perfected security interests or, to~~ enforceable against the ~~best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments~~Company in accordance with its terms; (iii) the ~~statements set forth under~~ Securities and the ~~heading “Description of Notes” in~~ Indenture have been duly authorized, executed and issued by the ~~Final Memorandum~~Company and, ~~insofar as such statements purport to summarize certain provisions~~ assuming due authentication thereof by the Trustee and upon payment for and delivery of the ~~Notes~~ Securities in accordance with the terms of this Agreement, they will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the ~~execution~~ Company has full power and ~~delivery of~~ authority to execute this Agreement ~~have been duly authorized by all necessary corporate action of the Company~~ and ~~the~~ this Agreement has been duly authorized, executed and delivered by the Company; (v) the execution and delivery of the ~~Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee)~~Indenture, the ~~Indenture will be a legal~~Securities and this Agreement, ~~valid~~ and ~~binding agreement~~ the fulfillment of the ~~Company, enforceable against the Company in accordance with its~~ terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on thereof and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized hereof by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach ~~or violation~~ of any of the terms ~~and~~ or provisions of, or constitute a default ~~under~~under any provision of, the Company's articles of incorporation or by-laws or any indenture, mortgage, deed of ~~trust, lease~~ trust or other ~~material~~ agreement or instrument, ~~known to~~ of which such ~~counsel~~counsel has knowledge, to which the Company ~~or any of its significant subsidiaries~~ is now a party ~~or by which~~ or, to the ~~Company or~~ best of such counsel's knowledge, any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or ~~other~~ governmental ~~authority~~ agency or ~~any arbitrator known to such counsel and applicable to~~ body having jurisdiction over the Company or any of its ~~significant subsidiaries~~activities or properties; (xvi) the provisions of the Securities and the Indenture conform in all material respects as to legal matters to the statements concerning them contained in the Offering Memorandum under "______________" and "________________________________________"; (vii) the franchises, permits and licenses under which the Company operates in the States of Missouri, ________ and _____are adequate to permit the Company to engage in the businesses which it presently conducts in those States and do not contain any unduly burdensome provisions; in those municipalities where the Company operates without franchises or where expired franchises have not been renewed, the lack of such franchises does not materially affect the Company's operations in such municipalities and no actions or proceedings are pending or, to such counsel's knowledge, threatened by such municipalities which would materially affect the Company's operations; (viii) it is not ~~an “investment company” and~~necessary in connection with the offer, ~~after giving effect~~ sale and delivery of the Securities to you and (assuming such offer, sale and delivery are made in compliance with the provisions of the Purchase Agreement and in the manner contemplated by the Offering Memorandum) to each subsequent purchaser to register the Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act of ~~the Notes and the application of the proceeds therefrom, will not be an “investment company”~~1939, as ~~such term is defined in the 1940 Act~~amended; and (xiix) ~~such counsel does not know of any legal or governmental proceedings pending or threatened to which~~ each document filed by the Company or any of its subsidiaries ~~is a party or to which~~ with the ~~property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus~~ Securities and Exchange Commission ("Commission") pursuant to the ~~Act that are not described~~ Exchange Act, and incorporated by reference in the ~~Final~~ Offering Memorandum ~~or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant~~ (except as to the ~~Act that are~~ financial statements and schedules and other financial and statistical data contained therein, as to which they need not ~~described or incorporated in~~ express any belief), at the ~~Final Memorandum. (xii) commencing~~ time it was filed with the ~~Company’s taxable year ended December 31~~Commission, ~~1998, the Company was organized and has operated~~ complied as to form in ~~conformity~~ all material respects with the ~~requirements for qualification as a real estate investment trust (“REIT”) under the Code,~~ Exchange Act and the ~~Company’s present~~ applicable instructions, rules and ~~proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act~~ regulations of the ~~Notes is required~~ Commission thereunder. Such counsel's opinion set forth in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, paragraphs (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof and (iii) above may be subject to the ~~due~~ qualifications that the enforceability of the Company's obligations under the Indenture and the Securities may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditor's rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing. Such opinion shall also state that such counsel has no knowledge of any litigation, pending or threatened, which challenges the validity of the Securities, the Indenture, or this Agreement, or which seeks to enjoin the performance of the Company's obligations thereunder or which might have a material adverse effect on the business, properties or financial condition of the Company except as disclosed in or contemplated by the ~~Initial Purchasers of the agreements set forth in Section 8 hereof~~Offering Memorandum. In rendering ~~any~~ such opinion, such counsel may ~~rely,~~ rely as to factual matters upon certificates or written statements from others or other appropriate representatives of ~~fact~~the Company or upon certificates of public officials. In such opinion, such counsel may state that while such counsel has examined the Offering Memorandum, such counsel necessarily assumes the correctness and completeness of the statements made and information included therein and takes no responsibility therefor, except insofar as such statements relate to such counsel and as set forth in paragraph (vii) above. Such counsel's opinion may further state that it is addressed to the Initial Purchasers and is rendered solely for their benefit and may not be relied upon in any manner by any other person (other than _______________________ to the extent ~~such counsel deems proper, on certificates of responsible officers~~ stated in its opinion to the Initial Purchasers as of the ~~Company and public officials and~~Closing Date) without such counsel's prior written consent. b. The Initial Purchasers shall have received from ____________, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, ~~upon the~~ such opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasersopinions, dated the Closing Date, with respect to ~~certain legal matters relating to this Agreement~~ the issuance and ~~such~~ sale of the Securities, the Indenture, the Offering Memorandum (together with any supplement thereto) and other related matters as the Initial ~~Purchasers~~ Purchaser may reasonably require~~. In rendering such opinion~~, ~~Xxxxxx Xxxxxx & Xxxxxxx LLP~~ and the Company shall have ~~received and may rely upon~~ furnished to such ~~certificates and other~~ counsel such documents ~~and information~~ as ~~it may reasonably~~ they request for the purpose of enabling them to pass upon such matters. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) c. The Company shall have furnished ~~or caused to be furnished~~ to the Initial Purchasers ~~at the Closing~~ a certificate of ~~its~~ the Company, signed by the Chairman of the ~~Board~~Board or the President and the principal financial or accounting officer of the Company, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to~~ dated the ~~Initial Purchasers~~ Closing Date, to the effect that the signers of such certificate have carefully examined the Offering Memorandum, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct ~~as if made~~ in all material respects on and as of the Closing ~~Date;~~ Date with the same effect as if made on the Closing Date and the Company has ~~performed~~ complied with all ~~covenants and~~ the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) ~~subsequent~~ since the date of the most recent financial statements included in the Offering Memorandum (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Offering Memorandum (exclusive of any supplement thereto). d. At the Closing Date, ________________, independent accountants shall have furnished to the ~~respective~~ Initial Purchasers a letter or letters, dated as of the Closing Date, in form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants' " comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Offering Memorandum. e. Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the ~~Final Memorandum~~ Offering Memorandum, there shall not have been (~~exclusive~~ i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 8 or (ii) any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurancechange, or ~~from~~ any ~~labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or~~ development involving a prospective ~~materially adverse~~ change, in or affecting the ~~condition (financial~~ business or ~~otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ properties of the Company the effect of which is, in the judgment of the Initial Purchasers, so material and adverse as to make it impractical or ~~any~~ inadvisable to proceed with the offering or delivery of ~~its subsidiaries, taken~~ the Securities as ~~a whole, except in each case as described in or~~ contemplated by the ~~Final Memorandum (exclusive of any amendment or supplement thereto)~~Offering Memorandum. ~~(e) Subsequent to the execution and delivery of this Agreement and prior~~ f. Prior to the Closing Date, ~~there~~ the Company shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers may reasonably request. If any of the conditions specified in this Section 8 shall not have ~~occurred any downgrading, nor shall any notice have~~ been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 satisfactory fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers and counsel for the Initial Purchasers~~. The Company shall furnish to~~ , this Agreement and all obligations of the Initial Purchasers ~~such conformed copies~~ hereunder may be canceled at, or at any time prior to, the Closing Date by the Initial Purchasers. Notice of such ~~opinions, certificates, letters, and documents~~ cancellation shall be given to the Company in ~~such quantities as the Initial Purchasers shall reasonably request~~writing or by telephone or electronic transmittal confirmed in writing.

Appears in 1 contract

Samples: Purchase Agreement (Ameren Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers to purchase and pay for the Notes shall,~~ Purchaser hereunder shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the continuing accuracy of the representations and warranties of the Company ~~contained~~ herein as of the date hereof and as of the Closing Date and each Option Closing Date, if any, as if they had been made on and as of the Closing Date or each Option Closing Date, to as the ~~accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to~~ case may be; and the performance by the Company on and as of the Closing Date and each Option Closing Date, if any, of its covenants and ~~agreements~~ obligations hereunder and to the following ~~additional~~ further conditions: (a) On The Initial Purchaser shall not have advised the ~~Closing Date~~Company that the Offering Circular, ~~the Initial Purchasers shall have received a legal opinion from Xxxxxxxx Chance US LLP~~or any supplement or amendment thereto, counsel for the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any contains an untrue statement of ~~a material~~ fact ~~or omitted~~ which is material, or omits to state ~~any~~ a fact which is material ~~fact~~ and is required to be stated therein or is necessary ~~in order~~ to make the ~~statements therein~~statements, in ~~the~~ 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 either the Closing Date or the relevant Option Closing Date, if any, and no proceedings for that purpose shall have been instituted or shall be contemplated. (iib) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified On or prior to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the ~~Notes will~~ Initial Purchaser shall have ~~been duly executed and delivered by~~ received from Xxxxxx Xxxx & Xxxxxx such opinion or opinions with respect to the ~~Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations~~ organization of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the ~~benefits~~ validity of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this AgreementDebentures, the ~~Registration Rights Agreement~~Underlying Stock, the ~~Indenture~~ Offering Circular and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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,~~ request and Xxxxxx Xxxx & Xxxxxx ~~& Xxxxxxx LLP~~ shall have received ~~and may rely upon~~ such ~~certificates and other documents~~ papers and information as they request to enable it ~~may reasonably request~~ to pass upon such matters. (c) ~~The~~ At Closing Date, the Initial ~~Purchasers~~ Purchaser shall have received ~~from PricewaterhouseCoopers LLP a letter or letters dated~~the favorable opinion of Skadden, ~~respectively~~Arps, Slate, Xxxxxxx & Xxxx, counsel to the ~~date hereof and~~ Company, dated the Closing Date, addressed to the Initial Purchaser and in form and substance reasonably satisfactory to Xxxxxx Xxxx & Xxxxxx, with respect to matters customarily covered in opinions of counsel ~~for the Initial Purchasers~~in like transactions. (d) ~~The~~ Skadden, Arps, Slate, Xxxxxxx & Xxxx shall state in the opinion letter contemplated by Section 6(c) that such counsel has participated in conferences with officers and other representatives of each of the Company and the Subsidiaries and representatives of the independent public accountants for the Company and the Subsidiaries and the Initial Purchaser, at which conferences the contents of the Offering Circular and related matters were discussed, and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Offering Circular and have made no independent check or verification thereof, on the basis of the foregoing, no facts have come to the attention of such counsel which has lead them to believe that the Offering Circular, as of its date contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, except that such counsel express no opinion or belief with respect to the financial statements and related notes, the pro forma financial information and other financial, statistical or accounting data included the Offering Circular or excluded therefrom); (e) On or prior to the Closing Date, Xxxxxx Xxxx & Xxxxxx shall have been furnished such documents, certificates and opinions as they may reasonably require for the purpose of enabling them to review or ~~caused~~ pass upon the matters referred to ~~be furnished~~ in subsection (c) of this Section 6 or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions of the Company herein contained. (f) Prior to the ~~Initial Purchasers~~ Closing Date: (i) there shall have been no material adverse change involving a prospective change in the condition, financial or otherwise, prospects, stockholders' equity or the business activities of the Company and the Subsidiaries taken as a whole, whether or not in the ordinary course of business, from the latest dates as of which such condition is set forth in the Offering Circular; (ii) there shall have been no transaction, not in the ordinary course of business, entered into by the Company or any of the Subsidiaries, from the latest date as of which the financial condition of the Company and the Subsidiaries is set forth in the Offering Circular which is materially adverse to the Company and the Subsidiaries taken as a whole; (iii) neither the Company nor any of the Subsidiaries shall be in default under any provision of any instrument relating to any material outstanding indebtedness; (iv) no material amount of the assets of the Company or any of the Subsidiaries shall have been pledged or mortgaged, except as set forth in the Offering Circular; (v) no action, suit or proceeding, at law or in equity, shall have been pending or. to the knowledge of the Company, threatened against the Company or any of the Subsidiaries, or affecting any of their respective properties or businesses, before or by any court or federal, state or foreign commission, board or other administrative agency wherein an unfavorable decision, ruling or finding may have a Material Adverse Effect, except as set forth in the Offering Circular; and (vi) no stop order shall have been issued under the Securities Act and no proceedings therefor shall have been initiated, threatened or contemplated by the Commission or any state regulatory authority. (g) At the Closing Date, the Initial Purchaser shall have received a certificate of ~~its Chairman~~ the Company signed by the principal executive officer and by the chief financial or chief accounting officer of the ~~Board~~Company, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to~~ in their capacities as such, dated the ~~Initial Purchasers~~ Closing Date, to the effect that each of such persons has carefully examined the Offering Circular, this Agreement and the Indenture, and that: (i) the representations and warranties of the Company in this Agreement, the Indenture and the Registration Rights Agreement are true and ~~correct~~ correct, as if made on and as of the Closing Date or such Option Closing Date; , as the case may be, and the Company has ~~performed~~ complied with all agreements and covenants ~~and agreements~~ and satisfied all conditions contained in this Agreement, the Indenture and the Registration Rights Agreement on its part to be performed or satisfied at or prior to the Closing Date; ii) no stop order suspending the qualification or exemption from qualification of the Debentures shall have been issued and no proceedings for that purpose shall have been commenced or, to the knowledge of the Company, be contemplated; iii) since the date of the most recent financial statements included in the Offering Circular, there has been no material adverse change in the condition, financial or otherwise business, prospects or results of operation of the Company and the Subsidiaries, taken as a whole, except as set forth in the Offering Circular; iv) none of the Offering Circular or any such amendment or supplement includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and ~~(ii~~v) subsequent to the respective dates as of which information is given in the ~~Final Memorandum~~ Offering Circular: (~~exclusive of any amendment or supplement thereto),~~ a) neither the Company nor any of the Subsidiaries has incurred up to and including the Closing Date or the Option Closing Date, as the case may be, other than in the ordinary course of its ~~subsidiaries~~ business, any material liabilities or obligations, direct or contingent, except as disclosed in the Offering Circular; (b) neither the Company nor any of the Subsidiaries has paid or declared any dividends or other distributions on its capital stock; (c) neither the Company nor any of the Subsidiaries has entered into any material transactions not in the ordinary course of business, except as disclosed in the Offering Circular; (d) there has not been any material change in the capital stock (other than pursuant to the Company's 1981 Incentive Stock Option Plan, 1981 Non-Qualified Stock Option Plan or 1991 Stock Option Plan or upon conversion of the 1998 Debentures); (e) neither the Company nor any of the Subsidiaries has sustained any material loss or ~~interference with their respective businesses~~ damage to its property or ~~properties from fire, flood, hurricane, accident or other calamity~~assets, whether or not ~~covered by insurance~~insured; and (f) there is no litigation which is pending or to the best of the Company's knowledge threatened against the Company, ~~or from~~ any ~~labor dispute~~ of the Subsidiaries or any ~~legal~~ affiliated party of any of the foregoing which would have a Material Adverse Effect and which is required to be set forth in an amended or ~~governmental proceeding, and there~~ supplemented Offering Circular which has not been ~~any materially adverse change~~ set forth. (~~including~~h) On or before the date hereof the Initial Purchaser shall have received a letter, ~~without limitation~~dated such date, ~~a change~~ addressed to the Initial Purchaser in ~~management or control)~~form and substance satisfactory in all respects to the Initial Purchaser and Xxxxxx Xxxx & Xxxxxx, ~~or development involving a prospective materially adverse change, in~~ from KPMG Peat Marwick LLP: i) confirming that they are independent certified public accountants with respect to the ~~condition (~~Company within the meaning of the Securities Act and the Exchange Act and the applicable Rules and Regulations; ii) stating that it is their opinion that the consolidated financial ~~or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ statements and supporting schedules of the Company and the Subsidiaries included in the Offering Circular or ~~any~~ incorporated by reference therein comply as to form in all material respects with the applicable accounting requirements of ~~its subsidiaries~~the Securities Act; and iii) stating that they have compared specific dollar amounts, ~~taken as a whole~~numbers of shares, ~~except~~ percentages of revenues and earnings, statements and/or other financial information pertaining to the Company and the Subsidiaries set forth in the Offering Circular in each case to the extent that such amounts, numbers, percentages, statements and information may be derived from the general accounting records, including work sheets, of the Company and/or the Subsidiaries and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures need not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter and found them to be in agreement. (i) At the Closing Date and each Option Closing Date, if any, the Initial Purchaser shall have received from KPMG Peat Marwick LLP a letter, dated as ~~described~~ of the Closing Date or such Option Closing Date, as the case may be, to the effect that they reaffirm that statements made in the letter furnished pursuant to subsection (h) of this Section 6, except that the specified date referred to shall be a date not more than five (5) days prior to the Closing Date or ~~contemplated~~ such Option Closing Date, as the case may be, to the further effect that they have carried out procedures as specified in clause (iii) of subsection (h) of this Section 6 with respect to certain amounts, percentages and financial information as specified by the ~~Final Memorandum~~ Initial Purchaser and deemed to be a part of the Offering Circular and have found such amounts, percentages and financial information to be in agreement with the records specified in such clause (~~exclusive of any amendment or supplement thereto~~iii). (ej) On each of the Closing Date and each Option Closing Date, if any, there shall have been duly tendered to the Initial Purchaser the appropriate principal amount of Debentures. (k) The Securities shall have been approved by the National Association of Securities Dealers, Inc. for trading in the PORTAL market. (l) Trading in the Common Stock shall not have been suspended by the American Stock Exchange at any time after September 1, 1995. (m) Subsequent to the execution and delivery of this Agreement ~~and prior to the Closing Date,~~ there shall not have occurred any ~~downgrading~~of the following: (i) trading in securities generally on the New York Stock Exchange, ~~nor~~ the American Stock Exchange or the over-the-counter market shall ~~any notice~~ have been ~~given~~ suspended or limited, or minimum prices shall have been established on either of such exchanges or such market by the Commission, by such exchange or by any ~~intended~~ other regulatory body or ~~potential downgrading~~ governmental authority having jurisdiction, or ~~of any review for a possible change that does not indicate the direction~~ trading in securities of the ~~possible change~~Company on any exchange or in the over-the- counter market shall have been suspended or (ii) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (iii) an outbreak or escalation of hostilities or a declaration by the United States of a national emergency or war or such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in the ~~rating accorded any~~ judgment of the ~~Company’s securities by any “nationally recognized statistical rating organization”~~Initial Purchaser, ~~as such term is defined for purposes~~ impracticable or inadvisable to proceed with the offering or the delivery of ~~Rule 436(g)(2) under~~ the ~~Act~~Debentures on the terms and in the manner contemplated in the Offering Circular. (fn) The Company and the Initial Purchaser shall have executed and delivered the Registration Rights Agreement on the date of this Agreement. (o) The Indenture shall have been duly executed and delivered by ~~all~~ the ~~parties thereto. (g) On~~ Company and the ~~Closing Date,~~ Trustee and the ~~Initial Purchasers~~ Debentures shall have ~~received the Registration Rights Agreement~~ been duly executed and delivered by the Company and ~~such agreement shall be in full force and effect at all times from and after~~ duly authenticated by the ~~Closing Date~~Trustee. (hp) On If any event shall have occurred that requires the Company under Section 4(c) hereof to prepare an amendment or ~~before~~ supplement to the ~~Closing Date~~Offering Circular, such amendment or supplement shall have been prepared, the Initial ~~Purchasers~~ Purchaser shall have been given a reasonable opportunity to comment thereon, and ~~counsel for~~ copies thereof delivered to the Initial ~~Purchasers~~ Purchaser. (q) There shall not have ~~received such further certificates~~occurred any invalidation of Rule 144A under the Securities Act by any court or any withdrawal or proposed withdrawal of any rule or regulation under the Securities Act or the Exchange Securities Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the judgment of the Initial Purchaser would materially impair the ability of the Initial Purchaser to purchase, ~~documents~~ hold or ~~other information~~ effect resales of the Debentures as ~~they may have reasonably requested from the Company~~contemplated hereby. All opinions, ~~certificates~~letters, ~~letters~~ evidence and ~~documents delivered pursuant to~~ certificates mentioned above or elsewhere in this Agreement ~~will comply~~ shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory ~~in all material respects~~ to the Initial ~~Purchasers and counsel for the Initial Purchasers~~Purchaser. ~~The Company shall furnish~~ If any condition to the Initial ~~Purchasers such conformed copies of such opinions~~Purchaser's obligations hereunder to be fulfilled prior to or at the Closing Date or the relevant Option Closing Date, ~~certificates, letters, and documents in such quantities~~ as the case may be, is not so fulfilled, the Initial ~~Purchasers shall reasonably request~~Purchaser may terminate this Agreement or, if the Initial Purchaser so elects, it may waive any such conditions which have not been fulfilled or extend the time for their fulfillment.

Appears in 1 contract

Samples: Purchase Agreement (Diagnostic Retrieval Systems Inc)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the ~~Notes~~ Securities shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from Xxxxxxxx Chance US LLP~~the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Cotton, Bledxxx, Xxxxx & Xawsxx, x Professional Corporation, counsel for the Company, ~~dated~~ in form and substance satisfactory to counsel for the ~~Closing Date~~Initial Purchasers, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the The Company and each of ~~its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act) have been~~ Subsidiaries is duly organized ~~and are~~ or incorporated, validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of incorporation and ~~are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ has all requisite corporate or other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate ~~their respective~~ its properties and ~~assets and~~ to conduct ~~their respective businesses~~ its business as described in the Final Memorandum, . Each of the Company and the Material Subsidiaries is duly qualified as a foreign corporation or limited liability company and in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not have, individually or in the aggregate, a Material Adverse Effect. (ii) The Company has ~~corporate power to enter into this Agreement,~~ the ~~Registration Rights Agreement and~~ authorized capitalization set forth in the ~~Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it~~Final Memorandum; all of the ~~issued and~~ outstanding shares of capital stock of ~~each of~~ the Subsidiaries are owned, directly or indirectly, by the Company~~’s significant subsidiaries~~, ~~except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company~~ free and clear of ~~any~~ all perfected security interests, other than security interests orgranted to the lenders under the Company's existing secured credit facility, and, to the ~~best~~ knowledge of such counsel, ~~any~~ free and clear of all other ~~security interests,~~ liens, encumbrances, equities and claims or ~~claims, except for pledges~~ restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of ~~subsidiary stock under debt instruments;~~certain jurisdictions) or voting. (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no No holder of securities of the Company ~~has~~ or any ~~right which has not been fully exercised or waived~~ Subsidiary (other than the Registrable Notes) is entitled to ~~require~~ have such securities registered under a registration statement filed by the Company pursuant to ~~register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by~~ the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (~~viii~~iv) ~~the~~ The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the ~~Registration Rights Agreement~~transactions contemplated hereby; this Agreement and the ~~Registration Rights~~ consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Company. This Agreement has been ~~duly authorized by the Company and, when~~ duly executed and delivered by the ~~Company~~ Company. (v) The Indenture (assuming the due authorization, execution and delivery thereof by the ~~Initial Purchasers~~Trustee), ~~will be a legal,~~ constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its ~~terms~~ terms, except that the enforcement thereof may be subject to (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~fraudulent conveyance, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors’ ' rights generally ~~from time to time in effect~~ and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) general principles of equity and the ~~accuracy~~ discretion of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering court before which any ~~such opinion, such counsel~~ proceeding therefor may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.be

Appears in 1 contract

Samples: Purchase Agreement (Costilla Energy Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial Purchasers to purchase ~~and pay for~~ the ~~Notes shall,~~ Certificates on the Closing Date will be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties of the ~~Company contained~~ Depositor 5 herein ~~as of~~ and in the ~~date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof~~Placement Agreement, to the performance by the ~~Company~~ Depositor and FFCA of ~~its covenants~~ their respective obligations hereunder and ~~agreements hereunder~~ under the Placement Agreement, including, without limitation, the delivery of each of the items required to be delivered pursuant to Section 5(a) and 5(b) of the Placement Agreement, and to the following additional ~~conditions~~conditions precedent: (a) On The Certificates and the ~~Closing Date~~Underlying Bonds shall have been duly authorized, executed, authenticated, delivered and issued, and each of the Indenture, the Servicing Agreement, the Owner Trust Agreement, the Management Agreement and the Loan Sale Agreement shall have been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect and the Secured Loans shall have been delivered to the Indenture Trustee pursuant to the Indenture. (b) The Initial Purchasers shall ~~have received a legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company~~receive certificates, dated the Closing Date, of the President or any Vice President of the Depositor and of the President or any Vice President of FFCA to the effect that such officer has carefully examined this Agreement, the Placement Agreement and the Memorandum and that: , to the best of such officer's knowledge (i) the representations and warranties of the Depositor and FFCA set forth herein and in the Placement Agreement are true and correct in all material respects as of the Closing Date, (ii) the Depositor and FFCA have complied with all material agreements and satisfied all material conditions on their parts to be performed or satisfied hereunder or under the Placement Agreement at or prior to the Closing Date and (iii) nothing has come to the attention of such ~~counsel has no reason~~ officer that would lead such officer to believe that ~~(other than~~ the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes Memorandum contains any untrue statement of a material fact ~~or omitted~~ or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (bc) The Initial Purchasers shall have received ~~a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated~~ on and as of the Closing ~~Date~~Date an opinion of Skadden, Arps, Slate, Meagher & Xxxx XXP, special coxxxxx xo txx Xnitial Purchasers, with respect to ~~certain legal matters relating to this~~ the validity of the Grantor Trust Agreement and ~~such~~ the Certificates, and other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasersrequest. (d) ~~The Company~~ There shall not have been, in the reasonable opinion of the Initial Purchasers, any requirement for any material change, amendment or 6 supplement to the Final Memorandum. (e) On or prior to the Closing Date the Depositor shall have ~~furnished or caused to be~~ furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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~~ certificates and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are 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 shall reasonably request. 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 referred to above or in Section 5 of the Placement Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers, this Agreement and all of the Initial Purchasers' obligations hereunder may be canceled by the Initial Purchasers at or prior to delivery of and payment for the Certificates. Notice of such cancellation shall be given to the Depositor and FFCA.

Appears in 1 contract

Samples: Purchase Agreement (Franchise Finance Corp of America)

Conditions of the Initial Purchasers’ Obligations. The ------------------------------------------------- obligation of the Initial Purchasers to purchase and pay for the Notes shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from Xxxxxxxx Chance US LLP~~the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Robert Veach, counsel for the ~~Company~~Issuers, ~~dated~~ in form and substance rexxxxxxxx xxxisfactory to counsel for the ~~Closing Date~~Initial Purchasers, to the effect that: (i) ~~such counsel has no reason to believe that (other than the financial statements and other financial information contained therein~~Each Issuer is duly organized, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing ~~as corporations~~ and in good standing under the laws of ~~their respective jurisdictions~~ its jurisdiction of ~~incorporation~~ organization and ~~are~~ has all requisite partnership or corporate power and authority to own its properties and to conduct its business as described in the Memorandum. Each Issuer is duly qualified to ~~transact~~ do business as a foreign ~~corporations and are~~ corporation or partnership in good standing ~~under the laws of~~ in all other domestic jurisdictions where ~~such counsel has been advised that~~ it conducts operations as disclosed in the Memorandum except where the failure to be so qualified would ~~amount~~ not, individually or in the aggregate, reasonably be expected to have a ~~material liability~~ Material Adverse Effect. (ii) BRL's capitalization set forth in the Memorandum under the heading "Capitalization of BRL" is correct as of the dates set forth therein; as of the Closing Date, all of the outstanding partnership interests of BRL and capital stock of BRLC have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or ~~disability~~ similar rights. (iii) Except as set forth in or contemplated by the Memorandum, (A) no options, warrants or other rights to purchase from either Issuer shares of capital stock or ownership interests in such Issuer are outstanding, (B) no agreements or other obligations to issue, or other rights to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in either Issuer are outstanding and (C) no holder of securities of either Issuer is entitled to have such securities registered under a registration statement filed by the Issuers except pursuant to the ~~Company and its subsidiaries, taken as a whole;~~ terms of the ~~Company and each of its significant subsidiaries have full~~ Registration Rights Agreement. (iv) Each Issuer has all requisite partnership or corporate power and authority to ~~own~~execute, ~~lease~~ deliver and ~~operate their respective properties and assets and conduct their respective businesses as described in~~ perform each of its obligations under the ~~Final Memorandum, and the Company has corporate power to enter into this Agreement~~Indenture, the ~~Registration Rights Agreement and~~ Notes, the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Exchange Notes and the ~~Indenture, provide a fair summary of such provisions~~Private Exchange Notes; ~~and~~ the ~~statements set forth~~ Indenture has been duly qualified under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings TIA in all material ~~respects as would be required to be disclosed in a prospectus pursuant to~~ respects; the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement Indenture has been duly ~~executed~~ and ~~delivered by the Company; (v) the execution and delivery of the Indenture have been duly~~ validly authorized by the ~~Company~~ Issuers and, when duly executed and delivered by the ~~Company~~ Issuers (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the ~~Indenture will be a legal,~~ valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIAIssuers. (viv) The Notes are in the form contemplated by the Indenture. The Notes have each been duly and validly authorized by ~~all necessary corporate action of~~ the ~~Company~~ Issuers and, ~~on and as of the Closing Date, the Notes will have been~~ when duly executed and delivered by the ~~Company and~~Issuers and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, ~~assuming~~ execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the ~~Trustee~~Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the ~~Company~~Issuers, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture~~; no holder of securities of~~ . (vi) The Exchange Notes and the ~~Company has any right which has not~~ Private Exchange Notes have been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated duly and validly authorized by the ~~Registration Rights Agreement; (vii)~~ Issuers, and when the Exchange Notes and the Private Exchange Notes have been duly ~~authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly~~ executed and delivered by the ~~Company~~ Issuers in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ valid and legally binding obligations of the ~~Company~~Issuers, ~~enforceable in accordance with their terms (subject, as~~ entitled to ~~enforcement~~ the benefits of ~~remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect)~~the Indenture. (~~viii~~vii) ~~the Company~~ Each Issuer has all requisite partnership or corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by the ~~Company~~ Issuers and, when duly executed and delivered by the ~~Company~~ Issuers (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will ~~be a legal,~~ constitute the valid and legally binding agreement of each Issuer. (viii) Each Issuer has all requisite partnership or corporate power and authority to execute, deliver and perform its obligations under this Agreement, and to consummate the ~~Company, enforceable against~~ transactions contemplated hereby; this Agreement and the ~~Company in accordance with its terms (subject, as to enforcement~~ consummation by the Issuers of ~~remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect~~ the transactions contemplated hereby have been duly and ~~except that any rights to indemnity or contribution thereunder may be limited~~ validly authorized by ~~federal~~ the Issuers. This Agreement has been duly executed and ~~state securities laws and public policy considerations)~~delivered by each Issuer. (ix) The Issuers have all requisite partnership or corporate power and authority to execute, deliver and perform its respective obligations under each of the Transaction Documents; each of the Transaction Documents has been duly and validly authorized by the Issuers and, when duly executed and delivered by the Issuers (assuming due authorization, execution and delivery thereof by the ~~Company of~~other parties thereto), will constitute the valid and legally binding agreement of the ~~performance~~ Issuers. (x) To the knowledge of such counsel, no legal or governmental proceedings are pending or, to the knowledge of such counsel, threatened to which either Issuer is a party or to which the property or assets of either Issuer are subject, or which seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the transactions contemplated by the ~~Company~~ Transaction Documents. (xi) The execution, delivery and performance of ~~its obligations under,~~ this Agreement, the Indenture, the Registration Rights Agreement, each of the ~~Indenture~~ Transaction Documents and the ~~Notes~~consummation of the transactions contemplated hereby and thereby (including, without limitation, the ~~Exchange Notes and the Private Exchange Notes, the issuance, offering~~ issuance and sale of the Notes to the Initial ~~Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do~~ Purchasers) will not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms ~~and~~ or provisions ofof any Contract, ~~or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which~~ (ii) the ~~Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter~~ organizational documents ~~or by-laws~~ of the ~~Company~~ Issuers or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof) any ~~of its significant subsidiaries~~statute, ~~or any statute or any~~ judgment, decree, order, rule or regulation ~~of any court or other governmental authority or any arbitrator~~ known to such counsel ~~and~~ to be applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company Issuers or any of ~~its subsidiaries is a party~~ their respective properties or to assets, except for any such conflict, breach, default or violation which ~~the property of the Company~~ would not reasonably be expected individually or ~~any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described~~ in the ~~Final Memorandum or any statutes, regulations, contracts or other documents that would be required~~ aggregate to ~~be described in~~ have a ~~prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum~~Material Adverse Effect. (xii) ~~commencing with~~ No consent, approval, authorization or order of any governmental authority is required for the ~~Company’s taxable year ended December 31, 1998, the Company was organized~~ issuance and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented sale by the ~~Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale~~ Issuers of the Notes to the Initial ~~Purchasers as contemplated~~ Purchasers, the consummation by ~~this Agreement and~~ the ~~Final Memorandum or in connection with the initial resale~~ Issuers of each of the ~~Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement~~ Transaction Documents or of the ~~Exchange Offer (~~other transactions contemplated hereby and thereby, except such as ~~defined in~~ may be required under the ~~Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (~~Hart-Scott-Rodino Act, as ~~defined in the Registration Rights Agreement)~~amended, the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may relyFederal Securities xxxx xx Xxxx Xxx laws, as to ~~matters of fact, to the extent~~ which such counsel ~~deems proper~~need express no opinion, ~~on certificates of responsible officers of the Company~~ and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Datethose which have previously been obtained. (b) ~~The~~ On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from Xxxxxx Xxxxxx~~ the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Cahill Gordon & ~~Xxxxxxx LLP~~Reindel, counsel for the Initial Purchasers, ~~dated the Closing Date,~~ with ~~respect to certain legal~~ rexxxxx xx cexxxxx xegal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, ~~Xxxxxx Xxxxxx~~ Cahill Gordon & ~~Xxxxxxx LLP~~ Reindel shall have received and may rely upon such ~~certificates and other~~ xxxxxxxxxtes xxx xxher documents and information as it may reasonably request to pass upon such matters. (c) The Initial Purchasers shall have received from ~~PricewaterhouseCoopers~~ Arthur Andersen LLP, KPMG LLP and Deloitte & Touche LLP a ~~letter or letters dated, respectively,~~ comfoxx xxxtxx xx xxtters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the ~~Company~~ Issuers contained in this Agreement ~~are~~ 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 the Issuers' 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 ~~Company has~~ date made and on and as of the Closing Date; the Issuers shall have performed in all material respects all covenants and agreements and satisfied all conditions on ~~its~~ their part to be performed or satisfied hereunder at or prior to the Closing Date; and ~~(ii) subsequent to the respective dates~~ , except as ~~of which information is given~~ described in the ~~Final~~ Memorandum (exclusive of any amendment or supplement ~~thereto~~thereto after the date hereof), ~~neither~~ subsequent to the ~~Company nor~~ date of the most recent financial statements of the Issuers included or incorporated by reference in such 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. (e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date. (f) Subsequent to the date of the most recent financial statements of the Issuers in the Memorandum (exclusive of any ~~of its subsidiaries has~~ amendment or supplement thereto after the date hereof), the Issuers shall not have sustained any ~~material~~ loss or interference with ~~their respective businesses~~ 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~~ dispute, slowdown or work stoppage or from any legal or governmental proceeding, ~~and there has not been any materially adverse change (including~~order or decree, ~~without limitation~~which loss or interference, ~~a change in management~~ individually or ~~control), or development involving a prospective materially adverse change,~~ in the ~~condition~~ aggregate, has or would be reasonably likely to have a Material Adverse Effect. (~~financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ g) The Initial Purchasers shall have received a certificate of the ~~Company~~ Issuers, dated the Closing Date, signed on behalf of the Issuers by their respective officers or, 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 and as of the date hereof and on and as of the Closing Date, and the Issuers have performed in all material respects all covenants and agreements and satisfied all conditions on their part to be performed or ~~any~~ satisfied hereunder at or prior to the Closing Date; and (ii) At the Closing Date, since the date hereof or since the date of ~~its subsidiaries, taken as a whole, except~~ the most recent financial statements in ~~each case as described in or contemplated by~~ the ~~Final~~ Memorandum (exclusive of any amendment or supplement ~~thereto~~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. (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (gh) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the ~~Company~~ Issuers and ~~such agreement~~ the other parties thereto. (i) On the Closing Date, all conditions to the consummation of the Transaction Documents (including the BRL Term Loan Agreement and the making of the loans thereunder and the Partnership Agreement) shall have been satisfied and each Transaction Document shall be in full force and ~~effect at~~ effect, with BRL in receipt of the Partnership Contribution prior to the consummation of the offering of the Notes. Since the date of this Agreement, except as previously disclosed to the Initial Purchasers and reasonably acceptable to them, there have been no amendments, modifications, restatements or waivers to any Transaction Document which would be required to be disclosed in the Memorandum and are not so disclosed. The BRL Term Loan Agreement and the Partnership Agreement conform in all ~~times from and after~~ material respects to the ~~Closing Date~~description thereof in the Memorandum. (hj) The Initial Purchasers shall have received each document to be delivered to them under the Participation Agreement. (k) The letter agreement attached hereto as Annex A shall have been executed by the parties thereto and be in full force and effect with all conditions specified in Section 3 thereof satisfied. On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such further ~~certificates~~documents, ~~documents or other information as they may have reasonably requested from the Company. All~~ opinions, certificates, letters and ~~documents~~ 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 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~~ Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules and ~~documents~~ instruments in such quantities as the Initial Purchasers shall reasonably request.

Appears in 1 contract

Samples: Purchase Agreement (BRL Universal Equipment Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the Purchased Notes ~~shall,~~ on the Closing Date will be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Offered 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 Business Loans and related Loan Files shall have been delivered to the Indenture Trustee pursuant to the Transfer and Servicing Agreement. (b) The Initial ~~Purchasers~~ Purchaser shall have received a ~~legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company~~certificate, dated the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Executive or Senior Vice President of the Company to the effect that such officer has carefully examined this Agreement, the Final Memorandum and the Transaction Documents and that: , to the best of such officer's knowledge (i) since the date information is given in the Final Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Business Loans except as contemplated by the Final Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company set forth herein are true and correct as of the Closing Date, (iii) the Company has ~~no reason~~ complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, (iv) the representations and warranties of the Company and the Trust Depositor in the Transaction Documents are true and correct, as of the Closing Date, as though such representations and warranties had been made on and as of such date, and (v) nothing has come to the attention of such officer that would lead such officer to believe that ~~(other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion)~~ the Final Memorandum, and any amendment thereof or supplement thereto, as of its date and as of the Closing Date, or ~~the date of such opinion, included or includes~~ any Additional Offering Document contains an untrue statement of a material fact ~~or omitted~~ or omits 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. (iic) ~~the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ The Class A Notes shall have been ~~duly organized~~ rated no less than "Aaa" by Xxxxx'x, "AAA" by S&P, and ~~are validly existing as corporations in good standing under~~ "AAA" by Fitch, the ~~laws of their~~ Class B Notes shall have been rated no less than "Aa1" by Xxxxx'x, "AA" by S&P, and "AA" by Fitch and the Class C Notes shall have been rated no less than "A1" by Xxxxx'x, "A" by S&P and "A+" by Fitch, such ratings shall not have been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the ~~failure to be so qualified would amount to a material liability or disability to~~ rating of the ~~Company and its subsidiaries, taken as a whole;~~ Offered Notes have been placed under review. (d) On the ~~Company and each~~ date of ~~its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in~~ the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, Ernst & Young shall have furnished to the ~~best knowledge~~ Initial Purchaser an "agreed upon procedures" letter, dated the date of ~~such counsel~~delivery thereof, ~~any other security interests~~in form and substance satisfactory to the Initial Purchaser, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to ~~such legal matters, documents~~ certain financial and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated statistical information contained in the Final Memorandum. (~~xii~~e) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers Purchaser shall have received ~~a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers~~an opinion, dated the Closing Date, of Xxxxx X. Xxx, in-house counsel to the Indenture Trustee, substantially in the form attached hereto as Exhibit A. (f) Initial Purchaser shall have received an opinion of Xxxxxx & Xxxxxx, counsel to the Company, (i) with respect to certain ~~legal~~ corporate matters ~~relating~~ substantially in the form attached hereto as Exhibit B and (ii) with respect to ~~this Agreement and such other related matters~~ there being no consents required to transfer the business Loans substantially in the form attached hereto as ~~the~~ Exhibit C. (g) The Initial ~~Purchasers may reasonably require. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx LLP~~ Purchaser shall have received opinions of Winston & Xxxxxx, counsel to the Company, the Trust Depositor and ~~may rely upon such certificates~~ the Trust, (i) with respect to certain corporate, federal tax, securities law and ~~other documents~~ investment company matters, substantially in the forms attached hereto as Exhibit D and ~~information~~ (ii) with respect to certain "true sale," "non-consolidation" issues and "perfection issues" substantially in the forms attached hereto as ~~it may reasonably request to pass upon such matters.~~Exhibit E. (ch) The Initial ~~Purchasers~~ Purchaser shall have received opinions of Xxxxxxxx, Xxxxxx & Finger, counsel to the Owner Trustee and the Trust, (i) substantially in the forms attached hereto as Exhibit F, (ii) with respect to certain "trust issues" substantially in the form attached hereto as Exhibit G and (iii) with respect to certain "perfection issues" substantially in the forms attached hereto as Exhibit H. (i) The Initial Purchaser shall have received from ~~PricewaterhouseCoopers LLP~~ the Indenture Trustee a ~~letter~~ certificate signed by one or ~~letters dated~~more duly authorized officers of the Indenture Trustee, ~~respectively, the date hereof and~~ dated the Closing Date, in ~~form and substance satisfactory to counsel for the Initial Purchasers~~customary form. (dj) The Initial Purchaser shall have received from the Owner Trustee, a certificate signed by one or more duly authorized officers of the Owner Trustee, dated the Closing Date, in customary form. (k) The Company shall have furnished ~~or caused to be furnished~~ to the Initial ~~Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ Purchaser and its ~~Chief Financial Officer~~ counsel such further information, certificates and documents as the Initial Purchaser and its counsel may reasonably have requested, and all proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be in all material respects reasonably satisfactory in form and substance to the Initial ~~Purchasers~~ Purchaser and its counsel. (l) All documents incident hereto and to the ~~effect that: (i)~~ Transaction Documents shall be reasonably satisfactory in form and substance to the ~~representations~~ Initial Purchaser and ~~warranties~~ its counsel, and the Initial Purchaser and its counsel shall have received such information, certificates and documents as they may reasonably request. If any of the ~~Company~~ conditions specified in this ~~Agreement are true and correct as if made on~~ Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the ~~Closing Date;~~ opinions and certificates mentioned above shall not be in all material respects reasonably satisfactory in form and substance to the ~~Company has performed~~ Initial Purchaser, this Agreement and all ~~covenants and agreements and satisfied all conditions on its part to~~ of the Initial Purchaser's obligations hereunder may be ~~performed or satisfied~~ canceled by the Initial Purchaser at or prior to delivery of and payment for the ~~Closing Date; and (ii) subsequent~~ Purchased Notes. Notice of such cancellation shall be given to the ~~respective dates as of which information is given~~ Company in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurancewriting, or ~~from any labor dispute~~ by telephone or ~~any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change~~ facsimile confirmed in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto)writing. (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.

Appears in 1 contract

Samples: Purchase Agreement (American Capital Strategies LTD)

Conditions of the Initial Purchasers’ Obligations. The obligation of ------------------------------------------------- each of the Initial Purchasers to purchase ~~and pay for~~ the Notes ~~shall, be subject~~hereunder is subject to the fulfillment, in the Initial ~~Purchasers’~~ Purchaser's sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each 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 to the following ~~additional~~ conditions: (a) On At the time of execution of this Agreement and on the Closing Date, no order or decree preventing the ~~Initial Purchasers~~ use of the Offering Memorandum or any amendment or supplement thereto, nor any order asserting that the transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have ~~received a legal opinion from Xxxxxxxx Chance US LLP~~been issued, ~~counsel~~ and no proceedings for ~~the Company, dated the Closing Date, to the effect that: (i) such counsel has no reason to believe~~ that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) purpose shall have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to commenced or shall be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests pending or, to the ~~best~~ knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions either of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company Issuers or any ~~of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound~~Guarantor, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) contemplated. No ~~registration under the Act of the Notes is required in connection with~~ order suspending the sale of the Notes ~~to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or~~ in ~~connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement~~any jurisdiction shall have been issued, and ~~prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement)~~ no proceedings for that purpose shall have been commenced or ~~the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to~~ shall be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of factpending or, to the ~~extent such counsel deems proper, on certificates~~ knowledge of ~~responsible officers~~ either of the ~~Company and public officials and~~Issuers or any Guarantor, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Datecontemplated. (b) ~~The Initial Purchasers~~ Subsequent to the date hereof (i) there shall not have ~~received~~ occurred any material adverse change, or any development involving a ~~legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP~~prospective material adverse change, ~~counsel for~~ in or affecting the ~~Initial Purchasers~~condition (financial or otherwise), ~~dated~~ business, prospects, liabilities (contingent or otherwise), properties, assets, net worth, solvency or results of operations of either of the ~~Closing Date~~Issuers or any of the Guarantors, and (ii) the conduct of the business and operations of the Issuers and the Guarantors has not been interfered with ~~respect~~ by strike, fire, flood, hurricane, accident or other calamity (whether or not insured) and, except as otherwise stated in the Offering Memorandum, the properties of each of the Issuers and the Guarantors 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, singly or in the aggregate, reasonably be expected to ~~certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, 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~~a Material Adverse Effect. (c) The Initial Purchasers shall have received ~~from PricewaterhouseCoopers LLP a letter or letters dated~~on the Closing Date an opinion of Xxxxx & Xxxxxxx LLP, ~~respectively,~~ counsel for the ~~date hereof~~ Issuers and the Guarantors, dated the Closing ~~Date~~Date and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the Initial Purchasers~~. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board~~, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers~~ to the effect that: (i) Each Issuer is a corporation duly incorporated and validly existing in good standing under the ~~representations and warranties~~ laws of the ~~Company~~ State of Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum and is duly registered and qualified to conduct its business and is in good standing as a foreign corporation in each jurisdiction where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify or to be in good standing could not, singly or in the aggregate with all other such failures, reasonably be expected to have a Material Adverse Effect; (ii) Each Guarantor is an entity duly incorporated and validly existing in good standing under the laws of its jurisdiction of incorporation or organization with full corporate, partnership or other applicable power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum and is duly registered and qualified to conduct its business and is in good standing as a foreign corporation, partnership or other entity in each jurisdiction where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify or to be in good standing could not, singly or in the aggregate with all other such failures, reasonably be expected to have a Material Adverse Effect; (iii) Each Issuer has corporate power and authority to enter into this Agreement and the other Transaction Documents and to issue, sell and deliver the Notes to be sold by it to the Initial Purchasers as provided herein, and this Agreement and each of the other Transaction Documents (other than the Notes) have been duly authorized, executed and delivered by each Issuer and each of the Transaction Documents (other than this Agreement) are ~~true~~ valid, legal and ~~correct as if made on~~ binding agreements of each Issuer, enforceable against each Issuer in accordance with their respective terms; (iv) Each Guarantor has corporate, partnership or other power and authority to enter into this Agreement and the other Transaction Documents, and this Agreement and each of the other applicable Transaction Documents have been duly authorized, executed and delivered by each Guarantor and each of the Transaction Documents (other than this Agreement) are valid, legal and binding agreements of each Guarantor, enforceable against each Guarantor in accordance with their respective terms; (v) The Notes have been duly and validly authorized by each Obligor, and, when executed by the Obligors, authenticated by the Trustee in accordance with the Indenture delivered to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, and will constitute valid and binding obligations of each Obligor, entitled to the benefits of the Indenture; (vi) (x) The offer, sale or delivery of the Notes 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and ~~there has not been any materially adverse change~~ (~~including~~y) the execution, ~~without limitation, a change in management~~ delivery or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated performance by the ~~Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery~~ Issuers of this Agreement and ~~prior~~ the other Transaction Documents, and (z) compliance by the Issuers with the provisions hereof or thereof and consummation by the Issuers of the transactions contemplated hereby or thereby, do not and will not conflict with and do not and will not constitute a breach of, or a default under (including any event which, with notice or lapse of time or both, would be a breach of or a default under), (a) the certificate or articles of incorporation or partnership or membership agreement or bylaws or other organizational documents of the Issuers or any of the Guarantors as in effect on the Closing Date or (b) any Agreement or Instrument known to such counsel as in effect on the Closing Date, ~~there shall not~~ except, with respect to this clause (b) any such conflict, breach or default that could not, singly or in the aggregate, with all such other conflicts, breaches and defaults, reasonably be expected to have ~~occurred~~ a Material Adverse Effect, and other than as described in the Offering Memorandum or the Incorporated Documents, and, based solely on facts known to such counsel, no such action will result in any ~~downgrading, nor shall any notice have been given~~ violation of any ~~intended~~ Law or ~~potential downgrading or of any review for a possible change that does not indicate the direction~~ Legal Requirement in effect as of the ~~possible change~~Closing Date which in such counsel's experience is customarily applicable to transactions of the type contemplated by the Transaction Documents (assuming for the purposes of this paragraph compliance with all applicable state securities and Blue Sky laws and, in the ~~rating accorded any~~ case of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date~~Agreements, the ~~Initial Purchasers~~ Act, the Exchange Act 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 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 shall reasonably request.1939 Act);

Appears in 1 contract

Samples: Purchase Agreement (Hollywood Park Inc/New/)

Conditions of the Initial Purchasers’ Obligations. The obligation of ------------------------------------------------- the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the ~~Notes shall,~~ Shares shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties of the Company contained herein as of the date ~~hereof~~ and ~~as of each Closing Date, as if made on~~ time that this Agreement is executed and ~~as of each~~ delivered by the parties hereto (the "Execution Time") and the Closing Date, to the accuracy of the statements of the Company’s 's officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions: (ai) On The Offering contemplated by this Agreement will become qualified or be exempt from qualification under the securities laws of the several states pursuant to subsection 5(b) not later than the Closing Date, and (ii) at the ~~Initial Purchasers~~ Closing Date no stop order suspending the sale of the Shares shall have ~~received a legal opinion from Xxxxxxxx Chance US LLP~~been issued, ~~counsel~~ and no proceeding for ~~the Company, dated the Closing Date, to the effect that:~~that purpose shall have been initiated or threatened. (ib) ~~such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the~~ The Final Memorandum, ~~as of its date~~ or ~~the date of such opinion~~any supplement thereto, ~~included or includes~~ will not contain any untrue statement of a material ~~fact~~ fact, or ~~omitted or omits~~ 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. (iic) ~~the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ The Initial Purchaser shall have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiariesreceived an opinion, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of dated the Closing Date, ~~the Notes will have been duly executed and delivered by the Company and~~of Xxxxxx, ~~assuming due authentication by the Trustee~~Xxxxx & Xxxxxxx LLP, ~~will be the legal, valid and binding obligations of~~ counsel for the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the ~~offering~~ form of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. Exhibit E. In rendering any such opinion, such counsel may rely, as to matters of ~~fact~~local law, on opinions of local counsel, and as to ~~the extent such counsel deems proper,~~ matters of fact on certificates of responsible officers of the Company and public ~~officials and~~officials, as in which case their opinion is to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form state that they are so doing and ~~scope to counsel for~~ that the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial PurchasersPurchaser is justified in relying on such opinions or certificates. References to the Final Memorandum in this ~~subsection~~ paragraph (ac) shall include any amendment or supplement thereto ~~prepared in accordance with the provisions of this Agreement~~ at the ~~Closing Date~~date of such opinion. (bd) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers Purchaser shall have received from ~~PricewaterhouseCoopers~~ Deloitte & Touche LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to ~~counsel for~~ the Initial ~~Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board~~Purchaser, ~~its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers~~ to the effect that: (i) they are independent accountants with respect to the ~~representations and warranties~~ Company within the meaning of Rule 101 of the ~~Company in this Agreement are true and correct as if made on and as~~ AICPA's Code 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 at or prior to the Closing Date; and~~Professional Conduct; (ii) ~~subsequent to~~ in their opinion, the ~~respective dates as of which information is given~~ audited financial statements examined by them and included in the Final Memorandum comply in form in all material respects with the applicable accounting requirements of the Act and the related published rules and regulations; (~~exclusive~~ iii) on the basis of ~~any amendment or supplement thereto~~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), ~~neither~~ a reading of the minute books of the stockholders, the board of directors and any committees thereof of the Company, and inquiries of certain officials of the Company ~~nor~~ 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 three business days prior to the date of such letter, there were any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, changes in the ~~condition (financial~~ capital stock or ~~otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations~~ total debt of the Company or any decreases in assets or stockholders' equity of ~~its subsidiaries~~the Company, ~~taken as a whole~~in each case compared with amounts shown on the December 18, 1996 balance sheet included in the Final Memorandum; and, except in ~~each case as described~~ all instances for changes, decreases or increases set forth in ~~or contemplated by~~ such letter; and (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 (exclusive~~ 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 ~~amendment~~ questions of legal interpretation. In the event that the letters referred to above set forth any such changes, decreases or ~~supplement thereto)~~increases which, in the reasonable discretion of the Initial Purchaser, are likely to result in a Material Adverse Effect, it shall be a further condition to the obligations of the Initial Purchaser such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Initial Purchaser deems such explanation unnecessary. (e) ~~Subsequent to~~ The Initial Purchaser shall have received from Xxxxxxx & Xxxxx L.L.P., counsel for the ~~execution and delivery of this Agreement and prior to~~ Initial Purchaser, such opinion or opinions, dated the Closing Date, ~~there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate~~ with respect to the ~~direction~~ issuance and sale of the ~~possible change~~Shares, in the ~~rating accorded~~ Final Memorandum (together with any amendment or supplement thereof or thereto) and other related matters as the Initial Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of ~~the Company’s securities by any “nationally recognized statistical rating organization”, as~~ enabling them to pass upon such ~~term is defined for purposes of Rule 436(g)(2) under the Act~~matters. (f) The ~~Indenture~~ Initial Purchaser shall have ~~been executed and delivered by all the parties thereto. (g) On~~ received a certificate, dated 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. (h) On or before the Closing Date, 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 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 shall reasonably request.~~Xxxxxxx X.X.

Appears in 1 contract

Samples: Purchase Agreement (Annaly Mortgage Management Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation of the~~ Initial ~~Purchasers~~ Purchasers' obligations to purchase and pay for the ~~Notes shall,~~ Units shall be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to (i) the accuracy of the representations and warranties of the Company and the Guarantors herein contained ~~herein~~ as of the date hereof and as of ~~each~~ the Closing Date, ~~as if made on and as of each Closing Date~~(ii) the absence in any certificates, opinions, written statements or letters furnished pursuant to this Section 6 to the ~~accuracy~~ Initial Purchasers or to their counsel, of any qualification or limitation not previously approved by the ~~statements of the Company’s officers made pursuant to the provisions hereof~~Initial Purchasers, to (iii) the performance by the Company and the Guarantors of ~~its covenants~~ their obligations hereunder required to be performed on or prior to the Closing Date, and ~~agreements hereunder and to~~ (iv) the following additional conditions: (a) Since the date of the latest balance sheet included in the Definitive Memorandum: (i) there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the capital stock or in the long-term debt of the Company or the Guarantors from that set forth in or contemplated by the Definitive Memorandum, (ii) the Company shall have no liability or obligation, direct or contingent, that is material to the Company and the Guarantors, taken as a whole, other than those reflected in the Definitive Memorandum; and (iii) there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the financial condition, business, properties, prospects, oil and gas reserves, net worth or results of operations of the Company and the Guarantors taken as a whole, except, in each case, as expressly described in the Definitive Memorandum. (b) The representations and warranties made by the Company and the Guarantors herein shall be true and correct on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of the Closing Date; and the Company and the Guarantors shall have complied in all material respects with all agreements hereunder required to be performed by the Company and the Guarantors. (c) As to each Initial Purchaser, the purchase of and payment for the Units to be purchased by such Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation, order or other restriction. (d) The Definitive Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York time, on the day following the date of this Agreement or at such later date and time as to which the Initial Purchasers may agree, and no stop order suspending the qualification or exemption from qualification of the Notes in any jurisdiction referred to in Section 4(e) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (e) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency which would, as of the Closing Date, prevent the issuance of the Notes; no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the best knowledge of the Company and the Guarantors, threatened against, the Company, the Guarantors or any of their respective subsidiaries before any court or arbitrator or any governmental body, agency or official that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect; and no stop order shall have been issued preventing the use of the Offering Memorandum, or any amendment or supplement thereto, or which could reasonably by expected to have a Material Adverse Effect, on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries taken as a whole. (f) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from Xxxxxxxx Chance US LLP~~the opinions of each of Xxxxxxx X. Xxxxxx, P.A. and Xxxx, Xxxxxx, Xxxxxxx, Xxxxxxxxxx & Xxxxxx, counsel ~~for~~ to the Company, dated the Closing Date, addressed to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope ~~to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters~~ reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial ~~Purchasers to the effect that: (i) the representations~~ Purchasers' counsel, substantially as set forth in Exhibits C-1 and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto)C-2 hereto, neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties theretorespectively. (g) On the Closing Date, the Initial Purchasers shall have received a certificate, dated the ~~Registration Rights Agreement executed~~ Closing Date, signed by each of the Chairman of the Board and Chief Financial Officer or the President and the Chief Financial Officer of the Company and the Guarantors, and such ~~agreement shall be~~ other certificates of executive officers as the Initial Purchasers may specify confirming the matters set forth in ~~full force~~ paragraphs (a) and ~~effect at all times from and after the Closing Date~~(b) of this Section 6. (h) On ~~or before~~ the Closing Date, the Initial Purchasers shall have received from Xxxxxxx & Xxxxx l.l.p., an opinion, dated the Closing Date, addressed to the Initial Purchasers, with respect to the Company, the Guarantors, the Offering Memorandum, the offer, sale and ~~counsel~~ resale of the Units and other related matters as the Initial Purchasers reasonably may require, and the Company shall have furnished to such firm such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. (i) Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received from Coopers & Xxxxxxx L.L.P., and on the Closing Date, the Initial Purchasers shall have received from Coopers & Xxxxxxx L.L.P., a letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers. (j) Concurrently with the execution and delivery of this Agreement, the Initial Purchasers shall have received from LKA, and on the Closing Date, the Initial Purchasers shall have received from LKA, a letter addressed to the Initial Purchasers, dated the date of its delivery, substantially in the form and to the effect and with respect to such matters as shall have been previously agreed upon by the Initial Purchasers. (k) On the Closing Date, the Company and the Guarantors shall have executed and delivered the Registration Rights Agreement and the Indenture; and the Company shall have executed the Warrant Agreement. (l) On or prior to the Closing Date, the Amended Credit Facility shall have been executed and delivered by the Company and the banks executing same, and providing for an available borrowings in an amount of at least $30 million after the Closing. (m) Simultaneously with the Closing, the HS Acquisition shall have been consummated as described in the Offering Memorandum. (n) On the Closing Date, the Notes shall be rated at least B3 by Xxxxx'x and B by S&P, and the Company shall have delivered to the Initial Purchasers a letter dated the Closing Date, from each such rating agency, or other evidence satisfactory to the Initial Purchasers, confirming that the Notes have such ratings; and since the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Notes or any of the Company's other securities by any nationally recognized securities rating agency, and no such securities rating agency shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes or any of the Company's other securities. (o) Prior to the Closing Date, the Company shall have furnished to the Initial Purchasers such further information, certificates and documents as the Initial Purchasers reasonably may request in writing. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, ~~documents or other information as they may have reasonably requested from the Company. All~~ opinions, ~~certificates,~~ written statements or letters ~~and documents delivered~~ furnished to the Initial Purchasers or to their counsel pursuant to this ~~Agreement will comply with the provisions hereof only if they are~~ Section 6 shall not be reasonably satisfactory in form and scope in all material respects to the Initial Purchasers and ~~counsel for~~ to their counsel, all of the Initial Purchasers' obligations hereunder may be canceled by them at, or at any time prior to, the Closing Date. ~~The Company~~ Notice of such cancellation shall ~~furnish~~ be given to the ~~Initial Purchasers such conformed copies of such opinions~~Company and the Guarantors in writing or by telephone, ~~certificates~~telecopy, ~~letters~~telex or telegraph, ~~and documents~~ confirmed in ~~such quantities as the Initial Purchasers shall reasonably request~~writing.

Appears in 1 contract

Samples: Purchase Agreement (Gothic Gas Corp)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of ~~the~~ each Initial ~~Purchasers~~ Purchaser to purchase and pay for the ~~Notes shall,~~ Securities to be ~~subject~~purchased by it on the Closing Date hereunder are subject to the fulfillment, in ~~the~~ such Initial ~~Purchasers’~~ Purchaser's sole discretion, ~~to the accuracy~~ of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each 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 to the following ~~additional~~ conditions: (a) templated by this Agreement are subject to the registration requirements of the Act shall have been issued and no proceedings for those purposes shall have been commenced or shall be pending or, to the knowledge of the Issuers, threatened. No order suspending the sale of the Securities in any jurisdiction shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending or, to the knowledge of the Issuers, threatened. (b) On the Closing Date, the Issuers shall have delivered to the Initial Purchasers ~~shall have received~~ a ~~legal opinion from Xxxxxxxx Chance US LLP~~true, ~~counsel for~~ correct and complete copy of the ~~Company, dated~~ New Revolving Credit Facility; on and as of the Closing ~~Date,~~ Date (after giving effect to the ~~effect that:~~consummation of the transactions contemplated by this Agreement), there shall not exist any condition which would constitute a Default or an Event of Default (as defined in the New Revolving Credit Facility). (c) Subsequent to the date hereof, (i) ~~such counsel has no reason to believe that~~ except as disclosed or contemplated in the Offering Memorandum, there shall not have occurred any material adverse change in the condition (~~other than~~ financial or other), business, prospects, properties, assets, net worth or results of operations of the ~~financial statements~~ Company and ~~other financial information contained therein~~the Subsidiaries, taken as ~~to which such counsel need express no opinion~~a whole, which, in the opinion of the Initial Purchasers, would materially adversely affect the market for the Securities, or (ii) the ~~Final Memorandum, as of its date or the date of such opinion, included or includes~~ Offering Memorandum shall not contain any untrue statement of a material fact or ~~omitted or omits~~ omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~. (ii)~~ , if amending or supplementing the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act) have been duly organized and are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation and are duly qualified Offering Memorandum to ~~transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where~~ correct any such ~~counsel has been advised that the failure to be so qualified would amount to a material liability~~ misstatement or ~~disability to the Company and its subsidiaries~~omission could, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy sole judgment of the Initial Purchasers~~’ representations in Section 8 and those~~ , materially adversely affect the marketability of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing DateSecurities. (bd) The Initial Purchasers shall have received ~~a legal~~ on the Closing Date an opinion ~~from Xxxxxx Xxxxxx~~ of Kirkxxxx & ~~Xxxxxxx LLP~~Xllix, ~~counsel~~ xxunsel for the Company, dated the Closing Date and addressed to the Initial Purchasers, ~~dated~~ substantially in the ~~Closing Date, with respect~~ form of Exhibit B hereto. (e) spect to ~~certain legal matters relating to this Agreement and~~ such ~~other related~~ matters as the Initial Purchasers may reasonably require. In rendering such opinion, 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 mattersrequest. (cf) The Initial Purchasers shall have received ~~from PricewaterhouseCoopers LLP a letter or~~ "cold comfort" letters ~~dated~~addressed to the Initial Purchasers, ~~respectively,~~ and dated the date hereof and the Closing Date, from Ernst & Young LLP, substantially in ~~form and substance satisfactory to counsel for~~ the forms heretofore approved by the Initial Purchasers. (di) There shall not have been any change in the capital stock of the Company or any Subsidiary nor any material increase in the short-term or long-term debt of the Company or any Subsidiary from that set forth or contemplated in the Offering Memorandum; (ii) except as disclosed or contemplated by the Offering Memorandum, the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole; (iii) all the representations and warranties of the Issuers 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; and (iv) the Initial Purchasers shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief accounting officer of each of the Issuers (or such other officers as are acceptable to the Initial Purchasers), to the effect set forth in this Section 7(g) and in Section 7(h) hereof. (h) The Issuers shall not have failed at or prior to the Closing Date to have performed or complied with any of their respective agreements herein contained and required to be performed or complied with by them hereunder at or prior to the Closing Date. (i) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to any class of securities of the Issuers (including the Securities), or (ii) it is reviewing its ratings assigned to any class of securities of the Issuers (including the Securities) with a view to possible downgrading, with negative implications or direction not determined. (k) The Issuers shall have taken all necessary acts to (i) repay all of the indebtedness for money borrowed of the Company and the Subsidiaries indicated as being repaid in the Offering Memorandum under the caption "Unaudited Pro Forma Consolidated Financial Information" immediately prior to the issuance of the Securities and (ii) terminate the related credit agreements. (l) The Company shall have received a solvency opinion from Valuation Research, which solvency opinion shall be in form and substance reasonably satisfactory to the Initial Purchasers. (m) Roma Restaurant Holdings, Inc. ("Holdings") shall have received at least $27.0 million of cash equity proceeds pursuant to the Recapitalization Agreement (as defined in the Offering Memorandum). (n) Except as disclosed in the Offering Memorandum, Holdings shall have contributed all of its assets and properties to the Company. (o) The Issuers shall have furnished or caused to be furnished to the Initial Purchasers ~~at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer~~ such further certificates and ~~its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct~~ customary closing documents 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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~~requested. All such opinions, certificates, letters and other documents ~~delivered pursuant to this Agreement~~ will ~~comply~~ be in compliance with the provisions hereof only if they are reasonably satisfactory in ~~all material respects~~ form and substance to the Initial ~~Purchasers~~ Purchasers. Any certificate or document signed by any officer of an Issuer and delivered to the Initial Purchasers, or to counsel for the Initial Purchasers~~. The Company~~ , shall ~~furnish~~ be deemed a representation and warranty by the Issuers to the Initial Purchasers ~~such conformed copies of such opinions, certificates, letters, and documents in such quantities~~ as to the ~~Initial Purchasers shall reasonably request~~statements made therein.

Appears in 1 contract

Samples: Purchase Agreement (Roma Fort Worth Inc)

Conditions of the Initial Purchasers’ Obligations. The ~~obligation~~ obligations of the Initial ~~Purchasers~~ Purchaser to purchase ~~and pay for~~ the Offered Notes ~~shall,~~ on the Closing Date will be ~~subject, in the Initial Purchasers’ sole discretion,~~ subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of each Closing Date, as if made on and as of each Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereofherein, to the performance by the Company of its ~~covenants and agreements~~ obligations hereunder and to the following additional ~~conditions~~conditions precedent: (a) ~~On the Closing Date~~The Offered Notes shall have been duly authorized, executed, authenticated, delivered and issued, the ~~Initial Purchasers~~ Transaction Documents shall have ~~received~~ been duly authorized, executed and delivered by the respective parties thereto and shall be in full force and effect, and the Business Loans shall have been delivered to the Indenture Trustee pursuant to the Sale and Servicing Agreement. (b) The Initial Purchaser shall receive a ~~legal opinion from Xxxxxxxx Chance US LLP, counsel for the Company~~certificate, dated the Closing Date, of the President, Chief Executive Officer, Chief Financial Officer or any Executive or Senior Vice President of the Company to the effect that such officer has carefully examined this Agreement, the Memorandum and the Transaction Documents and that: , to the best of such officer's knowledge (i) since the date information is given in the Memorandum, there has not been any material adverse change in the condition, financial or otherwise, or in the earnings, results of operations, business affairs or business prospects of the Company, whether or not arising in the ordinary course of business, or the ability of the Company to perform its obligations hereunder or under the Transaction Documents or in the characteristics of the Business Loans except as contemplated by the Memorandum or as described in such ~~counsel~~ certificates, (ii) the representations and warranties of the Company and Funding set forth herein and in the Transaction Documents are true and correct in all material respects as of the Closing Date, (iii) the Company has ~~no reason~~ complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Transaction Documents, at or prior to the Closing Date, and (iv) nothing has come to the attention of such officer that would lead such officer to believe that ~~(other than~~ the ~~financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum,~~ Memorandum as of its date and as of the Closing Date, or ~~the date of such opinion, included or includes~~ any Additional Offering Document contains an untrue statement of a material fact ~~or omitted~~ or omits 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. (iic) ~~the Company and each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under the Exchange Act)~~ The Class A Notes shall have been ~~duly organized~~ rated no less than "Aaa" by Moody's Investors Services, Inc. ("Moody's"), "AAA" by Standard & Poor's Ratings Services, a xxxxxxxn of The McGraw-Hill Companies, Inc. ("S&P"), and ~~are validly existing as corporations in good standing under~~ "AAA" by Fitch, Ixx. ("Xxxxx") and the ~~laws of their~~ Class B Notes shall have been rated no less than "A2" by Moody's, "A" by S&P, and "A" by Fitch, such ratings shall xxx xxxe been rescinded, and no public announcement shall have been made by the respective jurisdictions of incorporation and are duly qualified to transact business as foreign corporations and are in good standing under the laws of all other jurisdictions where such counsel has been advised rating agencies that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full power and authority to own, lease and operate their respective properties and assets and conduct their respective businesses as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and rating of the Notes to be carried out by it; all of the issued and outstanding shares of capital stock of each of the Company’s significant subsidiaries, except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company free and clear of any perfected security interests or, to the best knowledge of such counsel, any other security interests, liens, encumbrances, equities or claims, except for pledges of subsidiary stock under debt instruments; (iii) the statements set forth under the heading “Description of Notes” in the Final Memorandum, insofar as such statements purport to summarize certain provisions of the Notes and the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus pursuant to the Act and the Exchange Act and the respective rules and regulations thereunder; (iv) the execution and delivery of this Agreement have been duly authorized by all necessary corporate action of the Company and the Agreement has been duly executed and delivered by the Company; (v) the execution and delivery of the Indenture have been duly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), the Indenture will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect). The Indenture meets the requirements for qualification under the TIA. (vi) the Offered Notes have been duly authorized by all necessary corporate action of the Company and, on and as of the Closing Date, the Notes will have been duly executed and delivered by the Company and, assuming due authentication by the Trustee, will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and entitled to the benefits of the Indenture; no holder of securities of the Company has any right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder placed under the Act in the offering of the Notes contemplated by this Agreement or in the Exchange Offer contemplated by the Registration Rights Agreement; (vii) the Exchange Notes and the Private Exchange Notes have been duly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes are duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be the legal, valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect)review. (viii) the Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.

Appears in 1 contract

Samples: Purchase Agreement (MCG Capital Corp)

Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the ~~Notes~~ Securities shall, ~~be subject,~~ in ~~the Initial Purchasers’~~ their sole discretion, be subject to the ~~accuracy~~ satisfaction or waiver of the ~~representations and warranties of~~ following conditions on or prior to the ~~Company contained herein as of the date hereof and as of each~~ Closing Date, as if made on and as of each 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 to the following additional conditions: (a) On the Closing Date, the Initial Purchasers shall have received ~~a legal opinion from Xxxxxxxx Chance US LLP~~the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxxxxx & Xxxxxxx, counsel for the ~~Company~~Issuers, ~~dated~~ in form and substance reasonably satisfactory to counsel for the ~~Closing Date~~Initial Purchasers, to the effect that: (i) such counsel has no reason to believe that (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion) the Final Memorandum, as of its date or the date of such opinion, included or includes any untrue statement of a material fact or omitted or omits 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. (ii) the The Company and ~~each of its “significant subsidiaries” (as defined in Rule 1.02(w) of Regulation S-X under~~ the ~~Exchange Act)~~ Subsidiaries have been duly ~~organized~~ incorporated and are validly existing ~~as corporations~~ and in good standing under the laws of their respective jurisdictions of incorporation and ~~are duly qualified to transact business as foreign corporations and are in good standing under the laws of~~ have all other jurisdictions where such counsel has been advised that the failure to be so qualified would amount to a material liability or disability to the Company and its subsidiaries, taken as a whole; the Company and each of its significant subsidiaries have full requisite corporate power and authority to ~~own, lease and operate~~ own their ~~respective~~ properties and ~~assets and~~ to conduct their ~~respective businesses~~ business as described in the Final Memorandum; PROVIDED that no opinion as to good standing need be expressed with respect to VAD International, Inc. subsequent to June 25, 1997. (ii) Except as described in the Final Memorandum, and the Company has corporate power to enter into this Agreement, the Registration Rights Agreement and the Indenture and to carry out all the terms and provisions hereof and thereof and of the Notes to be carried out by it; all of the ~~issued and~~ outstanding shares of capital stock of ~~each of~~ the Subsidiaries are owned, directly or indirectly, by the Company~~’s significant subsidiaries~~, ~~except as otherwise set forth in the Final Memorandum, are owned beneficially by the Company~~ free and clear of ~~any~~ all perfected security interests orand, to the best knowledge of such counsel, ~~any~~ free and clear of all other ~~security interests,~~ liens, encumbrances, equities and claims or ~~claims, except for pledges~~ restrictions on transferability (other than those imposed by the Act and the securities or "Blue Sky" laws of ~~subsidiary stock under debt instruments;~~certain jurisdictions) or voting. (iii) ~~the statements~~ Except as set forth ~~under the heading “Description of Notes”~~ in the Final Memorandum, ~~insofar as~~ to the best of such ~~statements purport to summarize certain provisions~~ counsel's knowledge, no holder of securities of the ~~Notes and~~ Company or any Subsidiary is entitled to have such securities registered under a registration statement filed by the Indenture, provide a fair summary of such provisions; and the statements set forth under the heading “Certain Federal Income Tax Consequences” in the Final Memorandum, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, have been reviewed by such counsel and fairly present the information called for with respect to such legal matters, documents and proceedings in all material respects as would be required to be disclosed in a prospectus Issuers pursuant to the ~~Act and the Exchange Act and the respective rules and regulations thereunder;~~Registration Rights Agreement. (iv) ~~the execution and delivery of this Agreement have been duly authorized by all necessary corporate action~~ Each of the Issuers has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Indenture, the Company has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Notes, the Exchange Notes and the ~~Agreement~~ Private Exchange Notes; the Guarantors have all requisite corporate power and authority to execute, deliver and perform each of their obligations under the Guarantees; the Indenture meets the requirements for qualification under the TIA; the Indenture has been duly and validly authorized, executed and delivered by ~~the Company; (v) the execution and delivery~~ each of the ~~Indenture have been duly authorized by the Company and, when duly executed~~ Issuers and ~~delivered by the Company~~ (assuming the due authorization, execution and delivery thereof by the Trustee), ) constitutes the ~~Indenture will be a legal,~~ legally valid and binding agreement of each of the ~~Company~~Issuers, enforceable against the ~~Company~~ Issuers in accordance with its ~~terms~~ terms, except that the enforcement thereof may be limited or qualified by (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~moratorium, ~~moratorium~~ fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting ~~creditors’~~ the rights ~~generally from time to time~~ and remedies of creditors and (ii) general principles of equity, whether enforcement is considered in ~~effect). The Indenture meets~~ a proceeding in equity or at law, and the ~~requirements for qualification under~~ discretion of the ~~TIA~~court before which any proceeding therefor may be brought. (viv) The Notes are in the form contemplated by the Indenture. The Notes have each been duly ~~authorized by all necessary corporate action of the Company and~~and validly authorized, ~~on and as of the Closing Date, the Notes will have been duly~~ executed and delivered by the Company and, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the ~~Trustee~~Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ legally valid and binding obligations of the Company, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect) and will be entitled to the benefits of the Indenture~~; no holder~~ , and will be enforceable against the Company in accordance with their terms, except that the enforcement thereof may be limited or qualified by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of ~~securities~~ creditors and (ii) general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the ~~Company has~~ court before which any ~~right which has not been fully exercised or waived to require the Company to register the offer or sale of any securities owned by such holder under the Act~~ proceeding therefor may be brought. (vi) The Guarantees are in the ~~offering of the Notes contemplated by this Agreement or in the Exchange Offer~~ form contemplated by the ~~Registration Rights Agreement;~~Indenture. The Guarantees have each been duly and validly authorized, executed and delivered by the Subsidiaries and, when paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Guarantees by the Trustee in accordance with the Indenture), will constitute the legally valid and binding obligations of the Subsidiaries, and will be enforceable against the Subsidiaries in accordance with their terms, except that the enforcement thereof may be limited or qualified by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors and (ii) general principles of equity, whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought. (vii) The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, the Guarantees to be endorsed on the Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the ~~Company~~Guarantors and, ~~and~~ when the Exchange Notes and Guarantees thereof and the Private Exchange Notes ~~are~~ have been duly executed and delivered by the ~~Company~~ Issuers in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture), will be constitute the ~~legal,~~ legally valid and binding obligations of the ~~Company~~Issuers, be entitled to the benefits of the Indenture, and be enforceable against the Issuers in accordance with their ~~terms~~ terms, except that the enforcement thereof may be limited or qualified by (~~subject~~i) bankruptcy, ~~as to enforcement of remedies, to applicable bankruptcy~~insolvency, reorganization, ~~insolvency~~moratorium, ~~moratorium~~ fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting ~~creditors’~~ the rights ~~generally from time to time~~ and remedies of creditors and (ii) general principles of equity, whether enforcement is considered in ~~effect)~~a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought. (viii) Each of the ~~Company~~ Issuers has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly ~~authorized by the Company and~~and validly authorized, ~~when duly~~ executed and delivered by each of the ~~Company~~ Issuers and (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and except that any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations). (ix) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Registration Rights Agreement, the Indenture and the Notes, the Exchange Notes and the Private Exchange Notes, the issuance, offering and sale of the Notes to the Initial Purchasers by the Company pursuant to this Agreement, the compliance by the Company with the other provisions of this Agreement and the consummation of the other transactions herein contemplated do not (x) require the consent, approval, authorization, registration or qualification of or with any governmental authority, except such as have been obtained or made (and specified in such opinion) or such as may be required by the securities or Blue Sky laws of the various states of the United States of America and other U.S. jurisdictions in connection with the offer and sale of the Notes by the Initial Purchasers and except those that may be required by the Act or the TIA in connection with the exchange offer contemplated by the Registration Rights Agreement, or (y) conflict with or result in a breach or violation of any of the terms and provisions of, or constitute a default under, any indenture, mortgage, deed of trust, lease or other material agreement or instrument, known to such counsel, to which the Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries or any of their respective properties are bound, or the charter documents or by-laws of the Company or any of its significant subsidiaries, or any statute or any judgment, decree, order, rule or regulation of any court or other governmental authority or any arbitrator known to such counsel and applicable to the Company or its significant subsidiaries; (x) the Company is not an “investment company” and, after giving effect to the Offering of the Notes and the application of the proceeds therefrom, will not be an “investment company”, as such term is defined in the 1940 Act; and (xi) such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to which the property of the Company or any of its subsidiaries is subject that would be required to be described in a prospectus pursuant to the Act that are not described in the Final Memorandum or any statutes, regulations, contracts or other documents that would be required to be described in a prospectus pursuant to the Act that are not described or incorporated in the Final Memorandum. (xii) commencing with the Company’s taxable year ended December 31, 1998, the Company was organized and has operated in conformity with the requirements for qualification as a real estate investment trust (“REIT”) under the Code, and the Company’s present and proposed method of operation, as represented by the Company, will permit the Company to continue to so qualify. (xiii) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) (A) that the purchasers who buy such Notes 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 Notes is made in an offshore transaction as defined in Regulation S, (ii) the accuracy of the Initial Purchasers’ representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes 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. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and public officials and, as to matters involving the application of laws of any jurisdiction other than the State of New York or the United States or the General Corporation Law of the State of Delaware, to the extent satisfactory in form and scope to counsel for the Initial Purchasers, upon the opinion of Xxxxxxx LLP. An opinion of Xxxxxxx LLP shall be delivered to the Initial Purchasers and counsel for the Initial Purchasers covering matters reasonably requested by the Initial Purchasers. References to the Final Memorandum in this subsection (a) shall include any amendment or supplement thereto prepared in accordance with the provisions of this Agreement at the Closing Date. (b) The Initial Purchasers shall have received a legal opinion from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, 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, 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. (c) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers. (d) The Company shall have furnished or caused to be furnished to the Initial Purchasers at the Closing a certificate of its Chairman of the Board, its President or its Chief Executive Officer and its Chief Financial Officer satisfactory to the Initial Purchasers to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct 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 at or prior to the Closing Date; and (ii) subsequent to the respective dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), neither the Company nor any of its subsidiaries has sustained any material loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any materially adverse change (including, without limitation, a change in management or control), or development involving a prospective materially adverse change, in the condition (financial or otherwise), management, earnings, properties, business affairs or business prospects, stockholders’ equity, net worth or results of operations of the Company or any of its subsidiaries, taken as a whole, except in each case as described in or contemplated by the Final Memorandum (exclusive of any amendment or supplement thereto). (e) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined for purposes of Rule 436(g)(2) under the Act. (f) The Indenture shall have been executed and delivered by all the parties thereto. (g) 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. (h) On or before the Closing Date, 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 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 shall reasonably request.Initial

Appears in 1 contract

Samples: Purchase Agreement (Federal Data Corp /Fa/)

Common use of Conditions of the Initial Purchasers’ Obligations Clause in Contracts