Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations of the Initial Purchasers to purchase and pay for the Notes are subject to accuracy, when made and on and as of the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions: (i) The Initial Purchasers shall have received opinions in form and substance reasonably satisfactory to the Initial Purchasers, dated the Closing Date, of Xxxxxx and Xxxxx, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E hereto. (ii) The Initial Purchasers shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchasers, dated the Closing Date, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may require. (iii) The Initial Purchasers shall have received from Xxxxx Xxxxxxxx, independent registered public accountants for the Company, on each of the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, letters dated the date hereof and the Closing Date confirming that is an independent registered public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained or incorporated by reference in the Disclosure Package and the Offering Memorandum. (iv) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto. (v) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Closing Date and the Company shall have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date. (vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents. (vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of which, in the judgment of the Initial Purchasers, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. (viii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that: a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects. b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents. c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading. (ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement. (x) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined. (xi) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement. (xii) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee. (xiii) The shares of Common Stock issuable upon conversion of the Notes will be duly listed, subject to notice of issuance, for quotation on Nasdaq. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel to the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations of the Initial Purchasers to purchase and pay for the Notes are Securities shall be subject to accuracy, when made and on and as of the Closing Date, accuracy of the representations and warranties of the Company contained hereinIssuer and the Guarantors in Section 3 hereof, in each case on and as of the Applicable Time and on and as of the applicable Closing Date, as if made on and as of the Applicable Time and on and as of the applicable Closing Date, to the accuracy of the statements of officers of the Issuer and the Guarantors made pursuant to the provisions hereof, to the performance by the Company Issuer and the Guarantors of its obligations hereunder, their respective covenants and agreements hereunder and to each of the following additional terms and conditions:
(ia) The Initial Purchasers At each Closing Date, the Issuer and the Guarantors shall have received opinions in form and substance reasonably satisfactory furnish to the Initial PurchasersPurchasers the opinion and disclosure letter of Xxxxxxxx & Xxxxxxxx LLP, counsel for the Issuer and the Guarantors, addressed to the Representative and dated the such Closing Date, substantially in the form of Xxxxxx Exhibit A-1 and Xxxxx, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E A-2 hereto.
(iib) The At each Closing Date, the Issuer and the Guarantors shall furnish to the Initial Purchasers shall have received an the opinion of Xxxxxx & Xxxxxxx LLP, special Maryland counsel for the Issuer and NRF, addressed to the Initial Purchasers, Representative and dated the such Closing Date, with respect to substantially in the sufficiency form of certain legal matters relating to Exhibit B hereto.
(c) On the date of this Agreement and such other related matters as at each Closing Date, the Initial Purchasers may require.
(iii) The Initial Purchasers shall have received from Xxxxx XxxxxxxxXxxxxxxx LLP and Ernst & Young LLP letters dated the respective dates of delivery thereof and addressed to the Representative, independent in form and substance satisfactory to the Representative, containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the consolidated financial statements of NRF and Xxxxxxx, as applicable, incorporated by reference in the Disclosure Package and the Final Circular, and certain financial information of NRF and Xxxxxxx, as applicable, incorporated by reference in the Disclosure Package and the Final Circular, and such other matters customarily covered by comfort letters issued in connection with registered public accountants offerings; provided, that the letters delivered at the Initial Closing Date and each Option Closing Date (if applicable) shall use a “cut-off” date no more than three business days prior to such Initial Closing Date or such Option Closing Date, as the case may be.
(d) At each Closing Date, the Initial Purchasers shall have received the favorable opinion of and a negative assurance letter of Hunton & Xxxxxxxx LLP, counsel for the CompanyInitial Purchasers, on each and the favorable opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, special structuring counsel for the Initial Purchasers as to the validity of the date hereof Securities, each addressed to the Representative and the each dated such Closing Date, in form and substance satisfactory to the Representative. In addition, at each Closing Date, the Initial Purchasers shall have received (i) the favorable opinions of Hunton & Xxxxxxxx LLP, counsel for the Initial Purchasers, as to certain federal income tax matters with respect to NRF, substantially in the form of Exhibit C-1 hereto, and as to certain federal income tax matters with respect to NRE, substantially in the form of Exhibit C-2 hereto, and (ii) the favorable opinion of Hunton & Xxxxxxxx LLP, counsel for the Initial Purchasers, as to certain matters relating to the Investment Company Act with respect to NRF and the Issuer, substantially in the form of Exhibit D hereto, each addressed to the Representative and dated such Closing Date.
(e) No amendment or supplement to the Disclosure Package and the Final Circular shall have been filed to which the Representative shall have objected in writing prior to the filing thereof.
(f) Between the time of execution of this Agreement and the Initial Closing Date or the Option Closing Date, if any, there shall not have been any Material Adverse Change.
(g) The Initial Purchasers shall have received, at the Initial Closing Date and the Option Closing Date, if any, a certificate of two of NRF’s executive officers, to the effect that:
(i) the representations and warranties of NRF in this Agreement are true and correct, as if made on and as of the Initial Closing Date and the Option Closing Date, as applicable, and the Issuer and the Guarantors have complied with all of their respective obligations hereunder and satisfied all of the conditions on their part to be performed or satisfied at or prior to the at the Initial Closing Date and the Option Closing Date, as applicable; and
(ii) subsequent to the respective dates as of which information is given in the Disclosure Package and the Final Circular, and except as may be otherwise disclosed in the Disclosure Package and the Final Circular, there has not been (A) any Material Adverse Change, (B) any transaction that is material to the Issuer, the Guarantors and their respective subsidiaries taken as a whole, (C) any obligation, direct or contingent, that is material to the Issuer, the Guarantors and their respective subsidiaries, taken as a whole, incurred by the Issuer, the Guarantors or the Subsidiaries, (D) any change in the capital stock or outstanding indebtedness of the Issuer, the Guarantors or any Subsidiary that is material to the Issuer, the Guarantors and any of their respective subsidiaries, taken as a whole, or (E) any loss or damage (whether or not insured) to the Properties which has been sustained or will have been sustained which would reasonably be expected to have a Material Adverse Effect.
(h) All corporate and partnership proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement and the Indenture and all legal matters relating thereto shall be reasonably satisfactory to counsel to the Initial Purchasers and counsel to the Initial Purchasers, letters dated the date hereof Purchasers shall have received copies of such papers and documents as they may reasonably request in connection therewith to enable them to pass upon such legal matters.
(i) The Issuer and the Closing Date confirming that is an independent registered public accountant within Guarantors shall have furnished to the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing Initial Purchasers such other statements documents and information certificates as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements accuracy and certain financial and statistical information contained or incorporated by reference completeness of any statement in the Disclosure Package and the Offering Memorandum.
(iv) The Initial Purchasers shall have received from each Final Circular, the representations, warranties and statements of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(v) The representations and warranties of the Company NRF contained in this Agreement shall be true and correct on and as of the Closing Date herein, and the Company shall have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to performance by the Closing Date.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Issuer and the Offering Memorandum (exclusive Guarantors of their covenants contained herein, and the fulfillment of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of which, in the judgment of the Initial Purchasers, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(viii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date andconditions contained herein, as of the Initial Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiaryOption Closing Date, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(xii) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the Notes will be duly listed, subject to notice of issuance, for quotation on Nasdaq. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects prior to the Initial Purchasers and counsel to the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably requestdate hereof.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes The obligation of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations of the each Initial Purchasers Purchaser to purchase and pay for the Notes are subject shall be subject, in each such Initial Purchaser's discretion, to accuracy, when made and on and as of the Closing Date, accuracy of the representations and warranties of the Company contained hereinherein as of the Closing Date as if made on and as of the Closing Date, to the accuracy of the statements of the Company's officers and representatives made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, covenants and agreements hereunder and to each of the following additional terms and conditions:
(ia) The Initial Purchasers shall have received opinions an opinion, in form and substance reasonably satisfactory to the Initial Purchasers, dated the Closing DateDate and addressed to the Initial Purchasers, of Xxxxxx Xxxxxx, Xxxxxxxx and XxxxxXxxxxx, LLPP.A., counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering substantially in the matters set forth on Exhibit C hereto, form of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E ANNEX A hereto.
(iib) The Initial Purchasers shall have received an opinion of Xxxxxx & Xxxxxxx LLPopinion, counsel dated the Closing Date and addressed to the Initial Purchasers, dated of Weil, Gotshal & Xxxxxx LLP, counsel for the Closing DateInitial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require, and the Company shall furnish to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(iiic) The Initial Purchasers shall have received from Xxxxx Xxxxxxxx, independent registered public accountants for the Company, on each of Deloitte & Touche LLP comfort letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel for the Initial Purchasers.
(d) Subsequent to the date hereof or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), except as set forth in the Offering Memorandum (i) the Company, the Subsidiaries or the Camping World Subsidiaries shall not have incurred any liabilities or obligations, direct or contingent, that are material to the Company, the Subsidiaries and the Camping World Subsidiaries, taken as a whole, or entered into any transactions that are material to the business, condition (financial or other) or results of operations of the Company, the Subsidiaries and the Camping World Subsidiaries, taken as a whole, and there shall not have been any change in the capital stock or long-term indebtedness of the Company that is material to the business, condition (financial or other) or results of operations of the Company, the Subsidiaries and the Camping World Subsidiaries, taken as a whole, and (ii) there shall not have been any change or any development involving a prospective change, in or affecting the general affairs, condition (financial or other), results of operations, business, properties or assets of the Company, the Subsidiaries and the Camping World Subsidiaries, taken as a whole, the effect of which, in any case referred to in this clause (ii), is, in the sole judgment of the Initial Purchasers, letters dated so material and adverse as to make it impractical or inadvisable to proceed with the date hereof purchase and the Closing Date confirming that is an independent registered public accountant within the meaning delivery of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information Notes as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained or incorporated contemplated by reference in the Disclosure Package and the Offering Memorandum.
(ive) The Initial Purchasers No order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have received from each of the officers been issued and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F heretono proceeding for that purpose shall have been commenced or shall be pending or threatened.
(vf) The Company shall have furnished to the Initial Purchasers a certificate of the Chairman of the Board or the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Offering Memorandum, any amendment or supplement to the Offering Memorandum, this Agreement and the other Transaction Documents and that:
(i) The representations and warranties of the Company contained in this Agreement shall be are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company shall have has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at on or prior to the Closing Date.;
(viii) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since Since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred development has occurred, and no information has become known, that, individually or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of whichaggregate, in the judgment of the Initial Purchasers, is so material and adverse as has or would be reasonably likely to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state have a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.Material Adverse Effect; and
(viiiiii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have Notes hereunder has not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(ixg) Each of After the Offering Documents execution and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) Since the date delivery of this Agreement, there shall not have been (i) any announcement downgrading by any “nationally recognized statistical Standard & Poor's Corporation ("S&P") in the rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, Notes; (ii) any downgrading by Xxxxx'x Investors Service Inc. ("MOODY'S") in the rating of the Notes; or (Biii) it is reviewing its any notice given by S&P or Moody's of any intended or potential downgrading in any such rating assigned to or of a possible change in any debt securities such rating that does not indicate the direction of the Company with a view to possible downgrading, or with negative implications, or direction not determinedchange.
(xih) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(xii) At On the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterpartsthe Notes Registration Rights Agreement substantially in the form of ANNEX B hereto executed by the Company and AGI and such agreement shall be in full force and effect at all times from and after the Closing Date.
(i) The Indenture shall have been duly executed and delivered by the Company and the Trustee, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(xiiij) The shares Initial Purchasers shall have received evidence, reasonably satisfactory to them, that (i) the Camping World Acquisition shall have been consummated in accordance with the terms of Common the CWI Stock issuable upon conversion Purchase Agreement and (ii) the initial funding shall have occurred under the Credit Agreement and AGI shall have received gross cash proceeds therefrom sufficient to effect the Camping World Acquisition and the replacement of the existing AGI senior secured financing facility with the senior secured financing facility provided under the Credit Agreement as set forth in the Offering Memorandum.
(k) The sale of the Notes will hereunder shall not be duly listed, subject to notice enjoined (temporarily or permanently) on the Closing Date.
(l) The representations and warranties of issuance, for quotation the Company contained in this Agreement shall be true and correct in all material respects on Nasdaq. All such opinions, certificates, letters, schedules, documents or instruments delivered 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 Company's officers made pursuant to this Agreement will comply any certificate delivered in accordance with the provisions hereof only if they are reasonably satisfactory shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date; the Company shall have performed in all material respects all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Offering Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(m) The Initial Purchasers shall have received copies of the executed CWI Stock Purchase Agreement and counsel the executed Credit Agreement, certified by the Secretary or an Assistant Secretary of the Company as being true, correct and complete. The Credit Agreement shall be in form and substance reasonably satisfactory to the Initial Purchasers.
(n) On or before the Closing Date, the Initial Purchasers shall have received such further certificates, documents or other information as it may have reasonably requested from the Company. If any of the conditions specified in this Section 7 shall not have been fulfilled 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 satisfactory in form and substance to the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled on, or any time prior to, the Closing Date by the Initial Purchasers. Notice of such cancellation shall be given to the Company in accordance with Section 13. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, letters and documents and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations of the Initial Purchasers to purchase and pay for the Notes are Securities shall be subject to accuracy, when made and on and as of the Closing Date, accuracy of the representations and warranties of the Company contained hereinIssuer and the Guarantors in Section 3 hereof, in each case on and as of the Applicable Time and on and as of the applicable Closing Date, as if made on and as of the Applicable Time and on and as of the applicable Closing Date, to the accuracy of the statements of officers of the Issuer and the Guarantors made pursuant to the provisions hereof, to the performance by the Company Issuer and the Guarantors of its obligations hereunder, their respective covenants and agreements hereunder and to each of the following additional terms and conditions:
(ia) The Initial Purchasers At each Closing Date, the Issuer and the Guarantors shall have received opinions in form and substance reasonably satisfactory furnish to the Initial PurchasersPurchasers the opinion and disclosure letter of Sxxxxxxx & Cxxxxxxx LLP, counsel for the Issuer and the Guarantors, addressed to the Representative and dated the such Closing Date, substantially in the form of Xxxxxx Exhibit A-1 and Xxxxx, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E A-2 hereto.
(iib) The Initial Purchasers At each Closing Date, the Issuer and the Guarantors shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel furnish to the Initial PurchasersPurchasers the opinion of Vxxxxxx LLP, special Maryland counsel for the Issuer and NRF, addressed to the Representative and dated the such Closing Date, with respect to substantially in the sufficiency form of certain legal matters relating to Exhibit B hereto.
(c) On the date of this Agreement and such other related matters as at each Closing Date, the Initial Purchasers may require.
(iii) The Initial Purchasers shall have received from Xxxxx XxxxxxxxGxxxx Xxxxxxxx LLP and Ernst & Young LLP letters dated the respective dates of delivery thereof and addressed to the Representative, independent in form and substance satisfactory to the Representative, containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the consolidated financial statements of NRF and Gxxxxxx, as applicable, incorporated by reference in the Disclosure Package and the Final Circular, and certain financial information of NRF and Gxxxxxx, as applicable, incorporated by reference in the Disclosure Package and the Final Circular, and such other matters customarily covered by comfort letters issued in connection with registered public accountants offerings; provided, that the letters delivered at the Initial Closing Date and each Option Closing Date (if applicable) shall use a “cut-off” date no more than three business days prior to such Initial Closing Date or such Option Closing Date, as the case may be.
(d) At each Closing Date, the Initial Purchasers shall have received the favorable opinion of and a negative assurance letter of Hxxxxx & Wxxxxxxx LLP, counsel for the CompanyInitial Purchasers, on each and the favorable opinion of Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP, special structuring counsel for the Initial Purchasers as to the validity of the date hereof Securities, each addressed to the Representative and the each dated such Closing Date, in form and substance satisfactory to the Representative. In addition, at each Closing Date, the Initial Purchasers shall have received (i) the favorable opinions of Hxxxxx & Wxxxxxxx LLP, counsel for the Initial Purchasers, as to certain federal income tax matters with respect to NRF, substantially in the form of Exhibit C-1 hereto, and as to certain federal income tax matters with respect to NRE, substantially in the form of Exhibit C-2 hereto, and (ii) the favorable opinion of Hxxxxx & Wxxxxxxx LLP, counsel for the Initial Purchasers, as to certain matters relating to the Investment Company Act with respect to NRF and the Issuer, substantially in the form of Exhibit D hereto, each addressed to the Representative and dated such Closing Date.
(e) No amendment or supplement to the Disclosure Package and the Final Circular shall have been filed to which the Representative shall have objected in writing prior to the filing thereof.
(f) Between the time of execution of this Agreement and the Initial Closing Date or the Option Closing Date, if any, there shall not have been any Material Adverse Change.
(g) The Initial Purchasers shall have received, at the Initial Closing Date and the Option Closing Date, if any, a certificate of two of NRF’s executive officers, to the effect that:
(i) the representations and warranties of NRF in this Agreement are true and correct, as if made on and as of the Initial Closing Date and the Option Closing Date, as applicable, and the Issuer and the Guarantors have complied with all of their respective obligations hereunder and satisfied all of the conditions on their part to be performed or satisfied at or prior to the at the Initial Closing Date and the Option Closing Date, as applicable; and
(ii) subsequent to the respective dates as of which information is given in the Disclosure Package and the Final Circular, and except as may be otherwise disclosed in the Disclosure Package and the Final Circular, there has not been (A) any Material Adverse Change, (B) any transaction that is material to the Issuer, the Guarantors and their respective subsidiaries taken as a whole, (C) any obligation, direct or contingent, that is material to the Issuer, the Guarantors and their respective subsidiaries, taken as a whole, incurred by the Issuer, the Guarantors or the Subsidiaries, (D) any change in the capital stock or outstanding indebtedness of the Issuer, the Guarantors or any Subsidiary that is material to the Issuer, the Guarantors and any of their respective subsidiaries, taken as a whole, or (E) any loss or damage (whether or not insured) to the Properties which has been sustained or will have been sustained which would reasonably be expected to have a Material Adverse Effect.
(h) All corporate and partnership proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement and the Indenture and all legal matters relating thereto shall be reasonably satisfactory to counsel to the Initial Purchasers and counsel to the Initial Purchasers, letters dated the date hereof Purchasers shall have received copies of such papers and documents as they may reasonably request in connection therewith to enable them to pass upon such legal matters.
(i) The Issuer and the Closing Date confirming that is an independent registered public accountant within Guarantors shall have furnished to the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing Initial Purchasers such other statements documents and information certificates as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements accuracy and certain financial and statistical information contained or incorporated by reference completeness of any statement in the Disclosure Package and the Offering Memorandum.
(iv) The Initial Purchasers shall have received from each Final Circular, the representations, warranties and statements of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(v) The representations and warranties of the Company NRF contained in this Agreement shall be true and correct on and as of the Closing Date herein, and the Company shall have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to performance by the Closing Date.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package Issuer and the Offering Memorandum (exclusive Guarantors of their covenants contained herein, and the fulfillment of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of which, in the judgment of the Initial Purchasers, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(viii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date andconditions contained herein, as of the Initial Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiaryOption Closing Date, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(xii) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the Notes will be duly listed, subject to notice of issuance, for quotation on Nasdaq. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects prior to the Initial Purchasers and counsel to the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably requestdate hereof.
Appears in 1 contract
Samples: Purchase Agreement (Northstar Realty Finance Corp.)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations obligation of the Initial Purchasers to purchase and pay for the Notes are shall, in their sole discretion, be subject to accuracy, when made and the satisfaction or waiver of the following conditions on and as of or prior to the Closing Date:
(a) On the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(i) The Initial Purchasers shall have received opinions the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Paul, Xxiss, Rifkind, Wharxxx & Xarrxxxx, xxecial outside counsel for SDI Acquisition and, at and as of the Effective Time, the Company and the Guarantor, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, substantially in the form attached hereto as Exhibit C.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date, of Xxxxxx Date and Xxxxx, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E hereto.
(ii) The Initial Purchasers shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel addressed to the Initial Purchasers, dated of Cahixx Xxxxxx & Xeinxxx, xxunsel for the Closing DateInitial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Cahixx Xxxxxx & Xeinxxx xxxll have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(iiic) The Initial Purchasers shall have received from Xxxxx Xxxxxxxx, independent registered public accountants for the Company, on each of Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel to for the Initial Purchasers, letters dated the date hereof and the Closing Date confirming that is an independent registered public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained or incorporated by reference in the Disclosure Package and the Offering Memorandum.
(iv) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(vd) The representations and warranties of the Company SDI Acquisition contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of officers of SDI Acquisition, the Company and the Guarantor 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; SDI Acquisition, the Company and the Guarantor shall have complied in performed all material respects with 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.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal actionand, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements included or incorporated by reference except as described in the Disclosure Package and the Offering Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Final Memorandum, there shall have been no event or condition of a type described in Section 2(q) development, and no information shall have occurred become known, that, individually or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of whichaggregate, in the judgment of the Initial Purchasers, is so material and adverse as has had or would be reasonably likely to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state have a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleadingMaterial Adverse Effect.
(viiie) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have hereunder shall not been be enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against on the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering DocumentsClosing Date.
c. (f) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition none of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and Subsidiary shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications sustained any loss or waivers of any provision thereof since the date of this Agreement.
(x) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(xii) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the Notes will be duly listed, subject to notice of issuance, for quotation on Nasdaq. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel to the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably request.interference with
Appears in 1 contract
Samples: Purchase Agreement (Scot Inc)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations of the Initial Purchasers to purchase and pay for the Notes are hereunder shall be subject to accuracy, when made and on and as of the Closing Date, continuing accuracy of the representations and warranties of the Company contained hereinherein as of the date hereof and as of the Closing Date and each Option Closing Date, to if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the 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 obligations hereunder, hereunder and to each of the following additional terms and further conditions:
(ia) The Initial Purchasers shall not have received opinions advised the Company that the Offering Circular, or any supplement or amendment thereto, contains an untrue statement of fact which, in form and substance reasonably satisfactory to the Initial Purchasers' opinion, dated is material, or omits to state a fact which, in the Initial Purchasers' opinion, is material and is required to be stated therein or is necessary to make the statements, in light of the circumstances under which they were made when the Offering Circular is delivered, 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.
(b) On or prior to the Closing Date and each Option Closing Date, if any, the Initial Purchasers shall have received from XxXxxxxxx, Will & Xxxxx such opinion or opinions with respect to the organization of Xxxxxx and Xxxxx, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, validity of the General Counsel for Securities, the Company, covering Offering Circular and other related matters as the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E heretoInitial Purchasers may request.
(iic) The On the Closing Date and each Option Closing Date, if any, the Initial Purchasers shall have received an opinion of Xxxxxx & Xxxxxxx Proskauer Rose LLP, counsel to the Initial PurchasersCompany, dated the Closing Date, with respect or such Option Closing Date, as the case may be, addressed to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may require.
(iii) The Initial Purchasers shall have received from Xxxxx Xxxxxxxx, independent registered public accountants for the Company, on each of the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and XxXxxxxxx, Will & Xxxxx, in substantially the form attached hereto as Annex II;
(d) Proskauer Rose LLP shall state in the opinion letter contemplated by Section 6(c) that such counsel to has participated in conferences with officers and other representatives of the Company and the Subsidiaries, representatives of the independent public accountants for the Company and the Subsidiaries and representatives of Initial Purchasers, letters dated at which conferences the date hereof and the Closing Date confirming that is an independent registered public accountant within the meaning contents of the Exchange Act Offering Circular and related matters were discussed, and, although such counsel is not passing upon, and does not assume any responsibility for, the applicable published rules and regulations thereunder and containing accuracy, completeness or fairness of the statements contained in the Offering Circular, on the basis of the foregoing, no facts have come to the attention of such other counsel which has caused 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 and information as is ordinarily included in accountants’ “comfort letters” to underwriters therein not misleading, except that such counsel need express no opinion or belief with respect to the financial statements and certain related notes, the pro forma financial and information, or any other financial, statistical information contained or incorporated by reference accounting data included in the Disclosure Package Offering Circular or excluded therefrom;
(e) On or prior to the Closing Date and each Option Closing Date, if any, XxXxxxxxx, Will & Xxxxx shall have been furnished such documents and certificates as they may reasonably require for the Offering Memorandumpurpose of enabling them to review or pass upon the matters referred to in Section 6(b) above or in order to evidence the accuracy, completeness or satisfaction of any of the representations, warranties or conditions of the Company herein contained.
(f) On and as of the Closing Date and each Option Closing Date, if any: (i) there shall have been no material adverse 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) The 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 or contemplated 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 order suspending or preventing the sale of the Securities shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened or, to the knowledge of the Company, contemplated by the Commission or any state regulatory authority.
(g) On the Closing Date and each Option Closing Date, if any, the Initial Purchasers shall have received from a certificate of the Company signed on behalf of the Company by the principal executive officer and by the chief financial or chief accounting officer of the Company, in their capacities as such, dated the Closing Date or such Option Closing Date, as the case may be, to the effect that each of such persons has carefully examined the officers Offering Circular, this Agreement, the Indenture and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.Registration Rights Agreement, and that:
(vi) The the representations and warranties of the Company contained in this Agreement, the Indenture and the Registration Rights Agreement shall be are true and correct in all material respects, as if made on and as of the Closing Date or such Option Closing Date, as the case may be, and the Company shall have has complied in all material respects with all agreements and covenants and satisfied all conditions contained in this Agreement, the Indenture and the Registration Rights Agreement on its part to be performed or satisfied hereunder at or prior to the Closing Date or Option Closing Date., as the case may be;
(viii) None of no stop order suspending the issuance and sale qualification or exemption from qualification of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; issued and there no proceedings for that purpose shall not have been any legal actioncommenced or, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance knowledge of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this AgreementCompany, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.be contemplated;
(viiiii) Subsequent to the date of this Agreement and since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package 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 Memorandum (exclusive Circular;
iv) none of the Offering Circular or any amendment or supplement thereto after the date hereof), no event or condition includes any untrue statement of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of which, in the judgment of the Initial Purchasers, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were mademade when the Offering Circular is delivered, not misleading; and
v) subsequent to the respective dates as of which information is given in the Offering Circular: (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 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 change in the capital stock (other than pursuant to the Company's 1996 Stock Incentive Plan) or the long term debt of the Company or any of the Subsidiaries; (e) neither the Company nor any of the Subsidiaries has sustained any material loss or damage to its property or assets, whether or not insured; (f) there is no litigation which is pending or, to the Company's knowledge, threatened or contemplated against the Company, any of the Subsidiaries or any affiliated party of any of the foregoing which would, if decided adversely, have a Material Adverse Effect and which is required to be set forth in an amended or supplemented Offering Circular which has not been set forth; and (g) there has occurred no event which would be required to be set forth in an amended or supplemented prospectus if the Offering Circular were a prospectus included in a registration statement on Form S-1, which has not been set forth in an amendment or supplement to the Offering Circular.
(viiih) The On or before the date hereof the Initial Purchasers shall have received certificatesa letter, dated such date, addressed to the Initial Purchasers in form and substance satisfactory in all respects to the Initial Purchasers and XxXxxxxxx, Will & Xxxxx, from Coopers & Xxxxxxx L.L.P.
(i) On the Closing Date and each Option Closing Date, if any, the Initial Purchasers shall have received from Coopers & Xxxxxxx L.L.P. a letter, dated as of the Closing Date or such Option Closing Date, as the case may be, to the effect that they reaffirm their statements made in the letter furnished pursuant to Section 6(h), except that the specified date referred to shall be a date not more than five days prior to the Closing Date or such Option Closing Date, as the case may be, and to the further effect that they have carried out procedures as specified in their letter furnished pursuant to Section 6(h) with respect to certain amounts, percentages and financial information as specified by the Initial Purchasers 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 their letter furnished pursuant to Section 6(h). If there is more than one Option Closing, the obligations of the Company pursuant to this Section 6(i) shall be conditioned upon the payment by the Initial Purchasers of the fees and expenses of Coopers & Xxxxxxx L.L.P. incurred to provide the foregoing letter at any Option Closing after the Initial Option Closing.
(j) On the Closing Date and each Option Closing Date, if any, there shall have been duly tendered to the Initial Purchasers the appropriate number of shares of Preferred Stock.
(k) The Preferred Stock and the Notes 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 Nasdaq National Market at any time.
(m) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the-counter market shall have been suspended, or minimum prices shall have been established on either of such exchanges or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in securities of the 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 judgment of the Initial Purchasers, impracticable or inadvisable to proceed with the offering or the delivery of the Preferred Stock on the terms and in the manner contemplated in the Offering Circular.
(n) The Company and the Initial Purchasers shall have executed and delivered the Registration Rights Agreement on the date of this Agreement.
(o) The Certificate of Designations shall have been duly executed and filed by the Company with the Secretary of State of the State of Delaware.
(p) If any event shall have occurred that requires the Company under Section 4(c) hereof to prepare an amendment or supplement to the Offering Circular, such amendment or supplement shall have been prepared, the Initial Purchasers shall have been given a reasonable opportunity to comment thereon, and copies thereof delivered to the Initial Purchasers.
(q) There shall not have occurred any invalidation of Rule 144A under the Securities Act by any court or any withdrawal or proposed withdrawal of any rule or regulation under the Securities Act or the Exchange Act by the Commission or any amendment or proposed amendment thereof by the Commission which in the reasonable and good faith judgment of the Initial Purchasers would materially impair the ability of the Initial Purchasers to purchase, hold or effect resales of the Preferred Stock as contemplated hereby.
(r) On or prior to the Closing Date and each Option Closing Date, if any, the Initial Purchaser shall have received a certificate signed on behalf of the Company by the secretary of the Company, in his capacity as such, dated the Closing Date or such Option Closing Date, as the case may be, as to:
i) the absence of any contemplated proceeding for the merger, consolidation, liquidation or dissolution of the Company or any Subsidiary, as the case may be, or the sale of all or substantially all of its assets;
ii) the due adoption and signed by full force and effect of the president and chief executive officer and the chief financial officer by-laws of the Company (in their capacities as such), to the effect that:
a. All with a copy of the representations and warranties by-laws attached);
iii) resolutions adopted by the Board of Directors of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and and/or a committee thereof authorizing the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure PackageIndenture, the Offering MemorandumCertificate of Designations and the Registration Rights Agreement (with copies of such resolutions attached); and
iv) the incumbency, or the other Offering Documents.
c. Subsequent to the date authorization and signatures of this Agreement and since the date those officers of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) Since the date of company signing this Agreement, there shall not have been the Registration Rights Agreement and/or any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(xii) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and certificate delivered by the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the Notes will be duly listed, subject to notice of issuance, for quotation on Nasdaqat Closing. All such opinions, certificates, letters, schedules, documents evidence and certificates mentioned above or instruments delivered pursuant to 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 to the Initial Purchasers. The Company shall furnish If any condition to the Initial Purchasers such conformed copies of such opinionsPurchasers' obligations hereunder to be fulfilled prior to or at the Closing Date or the relevant Option Closing Date, certificatesas the case may be, lettersis not so fulfilled, schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably requestmay terminate their obligations pursuant to Section 9 or, if the Initial Purchasers so elect, they may waive any such conditions which have not been fulfilled or extend the time for their fulfillment.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations obligation of the Initial Purchasers to purchase and pay for the Notes are Securities shall, in their sole discretion, be subject to accuracy, when made and the satisfaction or waiver of the following conditions on and as of or prior to the Closing Date:
(a) On the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(i) The Initial Purchasers shall have received opinions the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Mayer, Brown & Platt, counsel for the Company, in form and xxxxxancx xxxisfaxxxxx to counsel for the Initial Purchasers, with respect to the matters provided for in Exhibit B hereto.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance reasonably satisfactory to the Initial Purchasers, dated as of the Closing Date, of Xxxxxx Date and Xxxxx, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E hereto.
(ii) The Initial Purchasers shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel addressed to the Initial Purchasers, dated of Cahill Gordon & Reindel, counsel for the Closing DateInitial Purchasers, with respect to the sufficiency of certain wixx xxxxxxx xo cxxxxxx legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Cahill Gordon & Reindel shall have received and may rely upon xxxx xxxxxxxcatxx xxx other documents and information as it may reasonably request to pass upon such matters.
(iiic) The Initial Purchasers shall have received from Xxxxx Xxxxxxxx, independent registered public accountants for the Company, on each of Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel to for the Initial Purchasers, letters dated the date hereof and the Closing Date confirming that is an independent registered public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained or incorporated by reference in the Disclosure Package and the Offering Memorandum.
(iv) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(vd) The representations and warranties of the Company Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Company 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 on and as of the date made and on and as of the Closing Date; the Issuers shall have complied in performed all material respects with 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, except as described in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(vie) None of the issuance and The sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents hereunder shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against on the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering DocumentsClosing Date.
(viif) Subsequent to the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Company, dated the Closing Date, signed on behalf of the Company by its Chairman of the Board, President or any Senior Vice President and the Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and the Issuers have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Offering Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred development has occurred, and no information has become known, that, individually or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of whichaggregate, in the judgment of the Initial Purchasers, is so material and adverse as has or would be reasonably likely to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state have a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.Material Adverse Effect; and
(viiiiii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have hereunder has not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(ixh) Each of On the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to Closing Date, the Initial Purchasers and shall have been received the Registration Rights Agreement executed by the Issuers and delivered by all the respective parties thereto (other than the Initial Purchasers) and such agreement shall be in full force and effect, effect at all times from and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since after the date of this AgreementClosing Date.
(xi) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned Concurrently with or prior to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated hereinby the Issuers, or in order to evidence the accuracy of any of Company and the representations and warranties, or Guarantors shall have entered into the satisfaction of any of the closing conditions or other obligations, contained in this Senior Credit Agreement.
(xiij) At The Securities shall have been approved by the NASD for trading in the Portal Market and shall be eligible for clearance and settlement through DTC. On or before the Closing Date, the Company Initial Purchasers and the Trustee shall have entered into the Indenture and counsel for the Initial Purchasers shall have received counterpartssuch further documents, conformed as executedopinions, thereof certificates, letters and schedules or instruments relating to the Notes shall have been duly executed business, corporate, legal and delivered by financial affairs of the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of Subsidiaries as they shall have heretofore reasonably requested from the Notes will be duly listed, subject to notice of issuance, for quotation on NasdaqIssuers. All such documents, opinions, certificates, letters, schedules, documents 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 to for the Initial Purchasers. The Company Issuers shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Coinmach Corp)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations of the Initial Purchasers to purchase and pay for the Notes are hereunder shall be subject to accuracy, when made and on and as of the Closing Date, continuing accuracy of the representations and warranties of the Company contained hereinherein as of the date hereof and as of the Closing Date and each Option Closing Date, to if any, as if they had been made on and as of the Closing Date or each Option Closing Date, as the case may be; and the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(i) The Initial Purchasers shall have received opinions in form and substance reasonably satisfactory to the Initial Purchasers, dated the Closing Date, of Xxxxxx and Xxxxx, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E hereto.
(ii) The Initial Purchasers shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchasers, dated the Closing Date, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may require.
(iii) The Initial Purchasers shall have received from Xxxxx Xxxxxxxx, independent registered public accountants for the Company, on each of the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, letters dated the date hereof and the Closing Date confirming that is an independent registered public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained or incorporated by reference in the Disclosure Package and the Offering Memorandum.
(iv) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(v) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Closing Date and the Company shall have complied in all material respects with all agreements each Option Closing Date, if any, of its covenants and satisfied all conditions on its part to be performed or satisfied obligations hereunder at or prior and to the Closing Date.following further conditions:
(via) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there The Initial Purchasers shall not have been any legal action, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against advised the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, that the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date any supplement or amendment thereto, contains an untrue statement of this Agreement and since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of fact which, in the judgment of Initial Purchasers' opinion, is material, or omits to state a fact which, in the Initial Purchasers' opinion, is so material and adverse as is required to make it impracticable be stated therein or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact is necessary in order to make the statements made thereinstatements, in light of the circumstances under which they were made, not misleading.
(viii) The Initial Purchasers shall have received certificates, dated . No order suspending the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreementin any jurisdiction shall have been issued on either the Closing Date or the relevant Option Closing Date, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) if any, and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2 (q) proceedings for that purpose shall have occurred been instituted or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleadingshall be contemplated.
(ixb) Each of the Offering Documents and each other agreement On or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance prior to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(xii) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterpartsfrom Kellxx Xxxx & Xarrxx xxxh opinion or opinions with respect to the organization of the Company, conformed the validity of the Preferred Stock, the Notes, the Conversion Shares, the Offering Memorandum and other related matters as executedthe Initial Purchasers may request and Kellxx Xxxx & Xarrxx xxxll have received such papers and information as they request to enable it to pass upon such matters.
(c) At Closing Date, thereof the Initial Purchasers shall have received the favorable opinion of Rubix Xxxx Xxxxx Xxxstant & Friexxxx, xxunsel to the Company, dated the Closing Date, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Kellxx Xxxx & Xarrxx, xx the effect that:
(A) the Company and each of the Subsidiaries has been duly organized and the Company and each of the Subsidiaries is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, (B) the Company and each of the Significant Subsidiaries is duly qualified and in good standing as a foreign corporation in each jurisdiction identified in a schedule to such opinion and (C) the Company and each of the Subsidiaries has all requisite power and authority to own or lease its properties and conduct its business as described in the Offering Memorandum;
ii) the Company's authorized capital stock is as set forth under the heading "Capitalization" in the Offering Memorandum, subject to such adjustments therein as are expressly contemplated by the Offering Memorandum; all of the outstanding shares of capital stock of each of the Subsidiaries are owned by the Company, directly or through one or more Subsidiaries, in each case free and clear of any liens, charges, claims, pledges, security interests or encumbrances of any kind whatsoever other than as disclosed in the Offering Memorandum; ## CT01/SCHIJ/68169.34 13 14 iii) except as disclosed in the Offering Memorandum, to the best of such counsel's knowledge, neither the Company nor any of the Subsidiaries is a party to or bound by any instrument, agreement or other arrangement providing for it to issue any capital stock, rights, warrants, options or other securities of the Company or any of the Subsidiaries, except for this Agreement and as described in the Offering Memorandum; the Certificate of Designations, the Indenture, the Securities and all other securities issued or issuable by each of the Company or any of the Subsidiaries which are described in the Offering Memorandum conform, or when issued and paid for, will conform in all material respects to the descriptions thereof contained in the Offering Memorandum; all issued and outstanding capital stock of the Company or any of the Subsidiaries has been duly authorized and validly issued and is fully paid and non-assessable; to the best of such counsel's knowledge, none of such securities were issued in violation of the preemptive rights of any securityholder of the Company or any of the Subsidiaries or similar contractual rights granted by the Company or any of the Subsidiaries or applicable securities laws; the Preferred Stock has been duly authorized and, when paid for by the Initial Purchasers in the manner contemplated by this Agreement, will be validly issued, fully paid and nonassessable; the Notes shall issuable upon exchange of the Preferred Stock in accordance with the Certificate of Designations have been duly authorized and, when executed and delivered authenticated in the manner contemplated by the Indenture, will be valid and binding obligations of the Company entitled to the benefits of the Indenture and duly authenticated enforceable against the Company in accordance with their terms, except to the extent that enforceability thereof may be limited by (1) bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors' rights generally; or (2) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity); the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the Preferred Stock or the Notes have been duly authorized and reserved for issuance upon conversion and, when issued, delivered and paid for in accordance with the terms of the Indenture, will be validly issued, fully paid and nonassessable; and the holders of outstanding securities of the Company are not entitled to any preemptive rights with respect to the Securities; all corporate action required to be taken for the authorization, issue and sale of the Securities has been duly listed, subject to notice of issuance, for quotation on Nasdaq. All such opinions, certificates, letters, schedules, documents or instruments delivered and validly taken; and the certificates representing the Securities are in due and proper form; upon the issuance and delivery pursuant to this Agreement will comply with of the provisions hereof only if they are reasonably satisfactory in all material respects Preferred Stock to be sold by the Company hereunder, the Initial Purchasers will acquire good and counsel to the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies marketable title thereto free and clear of such opinionsany pledge, certificateslien, letterscharge, schedulesclaim, documents and instruments in such quantities as the Initial Purchasers shall reasonably request.encumbrance, pledge, security interest or other restriction or equity of any kind whatsoever;
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations of the Initial Purchasers to purchase and pay for the Notes Purchaser hereunder are subject to accuracy, when made and on and as of (i) the Closing Date, accuracy of the representations and warranties of contained herein on the Company contained hereindate hereof (if applicable) and at the Closing Time, to (ii) the performance by the Company Sponsor of its obligations hereunder, hereunder and to each of (iii) compliance with the following additional terms and conditionsconditions precedent no later than on [•]:
(ia) The Initial Purchasers Sponsor shall have received opinions in form and substance reasonably satisfactory furnish to the Initial PurchasersPurchaser at the Closing Time an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, counsel for the Sponsor, addressed to the Initial Purchaser, and dated the Closing DateTime, of Xxxxxx and Xxxxx, LLP, counsel to in substantially the Company, covering the matters form set forth on in Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E A attached hereto.
(iib) The Sponsor shall furnish to the Initial Purchasers shall have received Purchaser at the Closing Time an opinion of Rxxxxxxx, Xxxxxx & Xxxxxxx LLPFinger, P.A. , counsel for the Sponsor, addressed to the Initial PurchasersPurchaser, and dated the Closing DateTime, in substantially the form set forth in Exhibit B attached hereto.
(c) The Registration Statement shall have been declared effective.
(d) Prior to the Closing Time, (i) no stop order with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may require.
(iii) The Initial Purchasers shall have received from Xxxxx Xxxxxxxx, independent registered public accountants for the Company, on each effectiveness of the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, letters dated the date hereof and the Closing Date confirming that is an independent registered public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained or incorporated by reference in the Disclosure Package and the Offering Memorandum.
(iv) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(v) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Closing Date and the Company shall have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order Registration Statement shall have been issued; and there shall not have been any legal action, statute, rule, regulation, order, decree issued under the Act or other administrative proceeding enacted, instituted proceedings initiated under Section 8(d) or overtly threatened against the Company or against the Initial Purchasers relating to the issuance 8(e) of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this AgreementAct, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of which, in the judgment of the Initial Purchasers, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of therein not misleading and (iii) the circumstances under which they were made, Prospectus and all amendments or supplements thereto shall not misleading.
(viii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition contain an untrue statement of a type described in Section 2 (q) shall have occurred material fact or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading.
(ixe) Each Between the time of execution of this Agreement and the Closing Time, no material adverse change or any development involving a prospective material adverse change in the management or financial condition of the Offering Documents and each other agreement Sponsor shall occur or instrument executed in connection with become known.
(f) The Sponsor will, at the transactions contemplated thereby shall be reasonably satisfactory in form and substance Closing Time, deliver to the Initial Purchasers and shall have been executed and delivered by all Purchaser an officer’s certificate in the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreementform attached as Exhibit C hereto.
(x) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xig) The Company Sponsor shall have furnished or caused to be furnished to the Initial Purchasers Purchaser such further other documents and certificates as to the accuracy and documents completeness of any statement in the Registration Statement and the Prospectus as of the Closing Time, as the Initial Purchasers shall have Purchaser may reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreementrequest.
(xiih) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes The Shares shall have been duly executed and delivered by approved for listing on the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the Notes will be duly listedExchange, subject to notice of issuanceissuance at or prior to the Closing Time. In the event that any of the foregoing conditions precedent have not been met or waived within the time indicated in the opening paragraph of section 6 hereof, the Initial Purchaser may in its sole discretion elect to surrender the Purchased Shares to the Trust for quotation on Nasdaq. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply redemption in compliance with the provisions hereof only if they are reasonably satisfactory in all material respects of the Trust Agreement, and upon receipt by the Initial Purchaser of the Initial Deposit and any expenses payable to the Initial Purchasers Purchaser pursuant to section 5 of this Agreement, this Agreement shall be of no further force and counsel to effect and all obligations of the Initial Purchasers. The Company parties hereunder shall furnish to be discharged; provided, that obligations of the Initial Purchasers such conformed copies parties arising under sections 4(k), 5 and 9 shall survive the termination of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably requestthis Agreement.
Appears in 1 contract
Samples: Initial Purchaser Agreement (JPM XF Physical Copper Trust)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations obligation of the Initial Purchasers to purchase and pay for the Notes are Securities shall, in their sole discretion, be subject to accuracy, when made and the satisfaction or waiver of the following conditions on and as of or prior to the Closing Date:
(a) On the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(i) The Initial Purchasers shall have received opinions the opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of Bxxxx Xxxx LLP, counsel for the Company and certain of the Subsidiary Guarantors, in form and substance reasonably satisfactory to counsel for the Initial Purchasers, as set forth in Exhibit A-1 and Exhibit A-2 hereto. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers. Additionally, on the Closing Date, the Initial Purchasers shall have received a reliance letter, dated as of the Closing Date and addressed to the Initial Purchasers, of Bxxxx Xxxx LLP, counsel for the Company and certain of the Subsidiary Guarantors, allowing the Initial Purchasers to rely on such legal opinions as Bxxxx Xxxx LLP may deliver to the Trustee in connection with the offering of the Securities.
(b) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date, of Xxxxxx Date and Xxxxx, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E hereto.
(ii) The Initial Purchasers shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel addressed to the Initial Purchasers, dated of Cxxxxx Xxxxxx & Rxxxxxx llp, counsel for the Closing DateInitial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and the Subsidiary Guarantors and certificates of public officials, copies of which shall have been provided to the Initial Purchasers.
(iiic) The On the date hereof, the Initial Purchasers shall have received from Xxxxx XxxxxxxxErnst & Young LLP a comfort letter dated the date hereof, independent registered public accountants in form and substance satisfactory to counsel for the CompanyInitial Purchasers with respect to the audited, on each of unaudited and pro forma financial information in the date hereof and Pricing Disclosure Package. On the Closing Date, the Initial Purchasers shall have received from Ernst & Young LLP a comfort letter dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel to for the Initial Purchasers, letters which shall refer to the comfort letter dated the date hereof and reaffirm or update as of a more recent date the Closing Date confirming that is an independent registered public accountant within information stated in the meaning of comfort letter dated the Exchange Act date hereof and similarly address the applicable published rules audited, unaudited and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the pro forma financial statements and certain financial and statistical information contained or incorporated by reference in the Disclosure Package and the Offering Final Memorandum.
(iv) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(vd) The representations and warranties of the Company and the Subsidiary Guarantors contained in this Agreement 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 and the Subsidiary Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Pricing Disclosure Package (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such 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 or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received certificates of the Company and each of the Subsidiary Guarantors, dated the Closing Date, 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 shall have complied in or the applicable Subsidiary Guarantor has performed all material respects with all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.;
(viii) None of at the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal actionClosing Date, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to since the date of this Agreement and hereof or since the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package development has occurred, and the Offering Memorandum the effect of which, in the judgment of the Initial Purchasers, is so material and adverse as no information has become known to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiarysuch Subsidiary Guarantor, that, individually or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue aggregate, has or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition would be reasonably likely to or change in the Disclosure Package and the Offering Memorandum in order to state have a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.Material Adverse Effect; and
(viiiiii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have hereunder has not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(ixh) Each of On the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to Closing Date, the Initial Purchasers and shall have been received the Registration Rights Agreement executed by the Company and delivered by all the respective parties thereto (other than the Initial Purchasers) Subsidiary Guarantors and such agreement shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xii) The Company Securities shall have furnished be eligible for clearance and settlement through The Depository Trust Company. On or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(xii) At before the Closing Date, the Company Initial Purchasers and the Trustee shall have entered into the Indenture and counsel for the Initial Purchasers shall have received counterpartssuch further documents, conformed as executedopinions, thereof certificates, letters and schedules or instruments relating to the Notes shall have been duly executed business, corporate, legal and delivered by financial affairs of the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of Subsidiaries as they shall have heretofore reasonably requested from the Notes will be duly listed, subject to notice of issuance, for quotation on NasdaqCompany. All such documents, opinions, certificates, letters, schedules, documents 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 to 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, documents schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Omega Healthcare Investors Inc)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations of the several Initial Purchasers to purchase and pay for the Notes are Bonds shall be subject to accuracy, when made the accuracy on the date hereof and on and as of the Closing Date, Date of the representations and warranties made herein on the part of the Company contained hereinand of any certificates furnished by the Company on the Closing Date and to the following conditions: At the Closing Date, there shall have been issued and there shall be in full force and effect, to the performance by extent legally required for the Company of its obligations hereunder, issuance and to each sale of the following additional Bonds, an order of the Commission under the Holding Company Act authorizing the issuance and sale of the Bonds on the terms and conditions:
(i) The set forth in, or contemplated by, this Purchase Xxxxxxxxx.Xx the Closing Date, the Initial Purchasers shall have received opinions in form from Xxxx X. Xxxx, Esq., Senior Counsel-Corporate and substance reasonably satisfactory to the Initial PurchasersSecurities of Entergy Services, Inc., and Xxxxxx Xxxx & Priest LLP opinions, dated the Closing Date, of Xxxxxx and Xxxxx, LLP, counsel to substantially in the Company, covering the matters forms set forth on Exhibit in Exhibits A and B hereto, respectively (it being understood that Xx. Xxxx may rely on an opinion of Xxxxxx, Xxxx & Xxxxxx, L.L.P. as to matters in his opinion relating to Texas law provided that the General Initial Purchasers are addressees of, or are otherwise entitled to rely on, such opinion), (i) with such changes therein as may be agreed upon by the Company and the Initial Purchasers with the approval of Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D heretoInitial Purchasers, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E hereto.
(ii) The if the Offering Memorandum shall be supplemented after being furnished to the Initial Purchasers for use in offering the Bonds, with changes therein to reflect such xxxxxxxxxxxxxxx.Xx the Closing Date, the Initial Purchasers shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel to from Counsel for the Initial PurchasersPurchasers an opinion, dated the Closing Date, substantially in the form set forth in Exhibit C hereto, with respect such changes therein as may be necessary to reflect any supplementation of the Offering Memorandum prior to the sufficiency of certain legal matters relating Closing Date.On or prior to the date this Purchase Agreement and such other related matters as becomes effective, the Initial Purchasers may require.
(iii) The Initial Purchasers shall have received from Xxxxx XxxxxxxxDeloitte & Touche LLP, the Company's independent registered public accountants for (the Company"Accountants"), on each of the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, letters a letter dated the date hereof and addressed to the Closing Date confirming Initial Purchasers to the effect that is an (i) they are independent registered public accountant 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, the financial statements and financial statement schedules audited by them and incorporated by reference in the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and thereunder; (iii) on the basis of performing the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as is ordinarily included described in accountants’ “comfort letters” to underwriters with respect to SAS No. 100, Interim Financial Information, on the latest unaudited financial statements and certain financial and statistical information contained or statements, if any, incorporated by reference in the Disclosure Package Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2004 to a specified date not more than five days prior to the date of such letter, and inquiries of officers of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (C) at the date of the latest available balance sheet read by the Accountants, and at a subsequent specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or decrease in its net current assets or stockholders' equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum.
, except in all instances for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (D) for the period from the closing date of the most recent income statement incorporated by reference in the Offering Memorandum to the closing date of the latest available income statement read by the Accountants there were any decreases, as compared to the corresponding period in the preceding year, in operating revenues, operating income or net income, except in all instances for decreases which the Offering Memorandum discloses have occurred or may occur or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (iv) The stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company (x) set forth in the Offering Memorandum, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as specified in Exhibit D hereto, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records of the Company, and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and found them to be in xxxxxxxxx.Xx the Closing Date, the Initial Purchasers shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(v) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Closing Date and the Company shall have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of which, in the judgment of the Initial Purchasers, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(viii) The Initial Purchasers shall have received certificatescertificate, dated the Closing Date and signed by the president and chief executive officer and President, a Vice President, the chief financial officer Treasurer or an Assistant Treasurer of the Company (in their capacities as such)Company, to the effect that:
a. All that (i) as of the Closing Date, the representations and warranties of the Company set forth in this Agreement contained herein are true and correct as if made on correct, (ii) the Company has performed and as of complied with all agreements and conditions in this Purchase Agreement to be performed or complied with by the Company at or prior to the Closing Date andand (iii) since the most recent date as of which information is given in the Offering Memorandum, as of it may then be amended or supplemented, there has not been any material adverse change in the Closing Date all agreementsbusiness, conditions and obligations property or financial condition of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal actionmaterial transaction entered into by the Company, orderother than transactions in the ordinary course of business, decree in each case other than as referred to in, or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Packageby, the Offering Memorandum, as it may then be amended or xxxxxxxxxxxx.Xx the Closing Date, the Initial Purchasers shall have received duly executed counterparts of the Supplemental Xxxxxxxxx.Xx the Closing Date, the Initial Purchasers shall have received from the Accountants a letter, dated the Closing Date, confirming, as of a date not more than five days prior to the Closing Date, the statements contained in the letter delivered pursuant to Section 6(d) hereof.Between the date hereof and the Closing Date, no default (or an event which, with the giving of notice or the other Offering Documentspassage of time or both, would constitute a default) under the Mortgage (as defined therein) shall have occurred.
c. Subsequent On or prior to the date Closing Date, the Initial Purchasers shall have received from the Company evidence reasonably satisfactory to the Initial Purchasers that the Bonds have received ratings of this Agreement Baa3 or better from Xxxxx'x Investors Service, Inc. and since BBB+ or better from Standard & Poor's Ratings Services.Between the date hereof and the Closing Date, neither Xxxxx'x Investors Service, Inc. nor Standard & Poor's Ratings Services shall have lowered its rating of any of the most recent financial statements Company's outstanding first mortgage bonds in any respect.Between the Disclosure Package date hereof and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof)Closing Date, no event or condition of a type described in Section 2 (q) shall have occurred with respect to or exist which event or condition isotherwise affecting the Company, not disclosed which, in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light reasonable opinion of the circumstances under which they are made, not misleading.
(ix) Each Representatives materially impairs the investment quality of the Offering Documents and each other agreement or instrument executed Bonds.All legal matters in connection with the transactions contemplated thereby issuance and sale of the Bonds shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than Counsel for the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(xii) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the Notes will be duly listed, subject to notice of issuance, for quotation on Nasdaq. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel to the Initial Purchasers. The Company shall furnish to the Initial Purchasers such with additional conformed copies of such opinions, certificates, lettersletters and documents as may be reasonably requested. If any of the conditions specified in this Section 6 shall not have been fulfilled, schedulesthis Purchase Agreement may be terminated by the Representatives upon notice thereof to the Company. Any such termination shall be without liability of any party to any other party, documents except as otherwise provided in paragraph (d) of Section 5 and instruments in such quantities as the Initial Purchasers shall reasonably requestSection 9.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations of the several Initial Purchasers to purchase and pay for the Notes are Bonds shall be subject to accuracy, when made the accuracy on the date hereof and on and as of the Closing Date, Date of the representations and warranties made herein on the part of the Company contained herein, to the performance and of any certificates furnished by the Company of its obligations hereunder, on the Closing Date and to each of the following additional terms and conditions:
(ia) The At the Closing Date, there shall have been issued and there shall be in full force and effect, to the extent legally required for the issuance and sale of the Bonds, an order of the Commission under the Public Utility Holding Company Act of 1935 (the "Holding Company Act") authorizing the issuance and sale of the Bonds on the terms set forth in, or contemplated by, this Purchase Agreement.
(b) At the Closing Date, the Initial Purchasers shall have received opinions in form from Xxxx X. Xxxx, Esq., Senior Counsel-Corporate and substance reasonably satisfactory to the Initial PurchasersSecurities of Entergy Services, Inc., and Xxxxxx Xxxx & Priest LLP opinions, dated the Closing Date, of Xxxxxx and Xxxxx, LLP, counsel to substantially in the Company, covering the matters forms set forth on Exhibit in Exhibits A and B hereto, respectively (it being understood that Xx. Xxxx may rely on an opinion of Xxxxxx, Xxxx & Xxxxxx, L.L.P. as to matters in his opinion relating to Texas law provided that the General Initial Purchasers are addressees to, or are otherwise entitled to rely on, such opinion), (i) with such changes therein as may be agreed upon by the Company and the Initial Purchasers with the approval of Counsel for the CompanyInitial Purchasers, covering and (ii) if the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel Offering Memorandum shall be supplemented after being furnished to the CompanyInitial Purchasers for use in offering the Bonds, with respect changes therein to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E heretoreflect such supplementation.
(iic) The At the Closing Date, the Initial Purchasers shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel to from Counsel for the Initial PurchasersPurchasers an opinion, dated the Closing Date, substantially in the form set forth in Exhibit C hereto, with respect such changes therein as may be necessary to reflect any supplementation of the Offering Memorandum prior to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may requireClosing Date.
(iiid) The At the Closing Date, the Initial Purchasers shall have received from Xxxxx XxxxxxxxDeloitte & Touche LLP, the Company's independent registered certified public accountants for (the Company"Accountants"), on each of the date hereof and a letter dated the Closing Date, in form Date and substance reasonably satisfactory addressed to the Initial Purchasers and counsel to the Initial Purchaserseffect that (i) they are independent certified public accountants with respect to the Company under Rule 101 of the American Institute of Certified Public Accountants (the "AICPA") Code of Professional Conduct and its interpretations and rulings; (ii) in their opinion, letters dated the date hereof financial statements and financial statement schedules audited by them and incorporated by reference in the Closing Date confirming that is an independent registered public accountant within Offering Memorandum comply as to form in all material respects with the meaning applicable accounting requirements of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and thereunder; (iii) on the basis of performing the procedures specified by the AICPA for a review of interim financial information as is ordinarily included described in accountants’ “comfort letters” to underwriters with respect to SAS No. 100, Interim Financial Information, on the latest unaudited financial statements and certain financial and statistical information contained or statements, if any, incorporated by reference in the Disclosure Package Offering Memorandum, a reading of the latest available interim unaudited financial statements of the Company, the minutes of the meetings of the Board of Directors of the Company, the Executive Committee thereof, if any, and the stockholder of the Company, since December 31, 2002 to a specified date not more than five days prior to the date of such letter, and inquiries of officers of the Company who have responsibility for financial and accounting matters (it being understood that the foregoing procedures do not constitute an audit made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter and, accordingly, that the Accountants make no representations as to the sufficiency of such procedures for the purposes of the Initial Purchasers), nothing has come to their attention which caused them to believe that, to the extent applicable, (A) the unaudited financial statements of the Company (if any) incorporated by reference in the Offering Memorandum do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; (B) any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; and (C) at a specified date not more than five days prior to the date of the letter, there was any change in the capital stock of the Company, increase in long-term debt of the Company, or decrease in its net assets or shareholders' equity, in each case as compared with amounts shown in the most recent balance sheet incorporated by reference in the Offering Memorandum, except in all instances for changes, increases or decreases which the Offering Memorandum discloses have occurred or may occur, for declarations of dividends, for the amortization of premium or discount on long-term debt, for any increases in long-term debt in respect of previously issued pollution control, solid waste disposal or industrial development revenue bonds, or for changes, increases or decreases as set forth in such letter, identifying the same and specifying the amount thereof; and (iv) stating that they have compared specific dollar amounts, percentages of revenues and earnings and other financial information pertaining to the Company (x) set forth in the Offering Memorandum, and (y) set forth in documents filed by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act as specified in Exhibit D hereto, in each case, to the extent that such amounts, numbers, percentages and information may be derived from the general accounting records of the Company, and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter, and found them to be in agreement.
(ive) The At the Closing Date, the Initial Purchasers shall have received from each a certificate signed by the President, a Vice President, the Treasurer or an Assistant Treasurer of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially Company, to the form of Exhibit F hereto.
effect that (vi) The the representations and warranties of the Company contained in this Agreement shall be herein are true and correct on and as of the Closing Date and correct, (ii) the Company shall have has performed and complied in all material respects with all agreements and satisfied all conditions on its part in this Purchase Agreement to be performed or satisfied hereunder complied with by the Company at or prior to the Closing Date.
Date and (viiii) None since the most recent date as of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities which information is given in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, as it may then be amended or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements included or incorporated by reference supplemented, there has not been any material adverse change in the Disclosure Package and the Offering Memorandum (exclusive of any amendment business, property or supplement thereto after the date hereof), no event or financial condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of which, in the judgment of the Initial Purchasers, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(viii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal actionmaterial transaction entered into by the Company, orderother than transactions in the ordinary course of business, decree in each case other than as referred to in, or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Packageby, the Offering Memorandum, as it may then be amended or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleadingsupplemented.
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(xiif) At the Closing Date, the Company Initial Purchasers shall have received duly executed counterparts of the Supplemental Indenture and the Trustee Registration Rights Agreement.
(g) Between the date hereof and the Closing Date, no default (or an event which, with the giving of notice or the passage of time or both, would constitute a default) under the Mortgage (as defined therein) shall have entered into occurred.
(h) On or prior to the Indenture and Closing Date, the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by from the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the Notes will be duly listed, subject to notice of issuance, for quotation on Nasdaq. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are evidence reasonably satisfactory in all material respects to the Initial Purchasers that the Bonds have received ratings of Baa3 or better from Xxxxx'x Investors Service, Inc. and counsel BBB- or better from Standard & Poor's Ratings Services.
(i) Between the date hereof and the Closing Date, neither Xxxxx'x Investors Service, Inc. nor Standard & Poor's Ratings Services shall have lowered its rating of any of the Company's outstanding first mortgage bonds in any respect.
(j) Between the date hereof and the Closing Date, no event shall have occurred with respect to or otherwise affecting the Company, which, in the reasonable opinion of BNP Paribas Securities Corp. and Xxxxxx Brothers Inc., as representatives of the Initial Purchasers. , materially impairs the investment quality of the Bonds.
(k) All legal matters in connection with the issuance and sale of the Bonds shall be satisfactory in form and substance to Counsel for the Initial Purchasers.
(l) The Company shall furnish to the Initial Purchasers such with additional conformed copies of such opinions, certificates, lettersletters and documents as may be reasonably requested. If any of the conditions specified in this Section 6 shall not have been fulfilled, schedulesthis Purchase Agreement may be terminated by BNP Paribas Securities Corp. and Xxxxxx Brothers Inc., documents and instruments in such quantities as on behalf of the Initial Purchasers Purchasers, upon notice thereof to the Company. Any such termination shall reasonably requestbe without liability of any party to any other party, except as otherwise provided in paragraph (d) of Section 5 and in Section 9.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations obligation of the Initial Purchasers to purchase and pay for the Notes are shall, in their sole discretion, be subject to accuracy, when made the satisfaction or waiver of the following conditions on or prior to the Closing Date or any Option Closing Date:
(a) On the Closing Date and on and as of the any Option Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(i) The Initial Purchasers shall have received opinions the opinion, dated as of such Closing Date or Option Closing Date and addressed to the Initial Purchasers, of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC, counsel for the Company, in the form of Annex B hereto.
(b) On the Closing Date or any Option Closing Date, the Initial Purchasers shall have received the opinion, in form and substance reasonably satisfactory to the Initial Purchasers, dated the as of such Closing Date or Option Closing Date, of Xxxxxx and Xxxxx, LLP, counsel to as the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D heretocase may be, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E hereto.
(ii) The Initial Purchasers shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel addressed to the Initial Purchasers, dated of Lxxxxx & Wxxxxxx LLP, counsel for the Closing DateInitial Purchasers, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Lxxxxx & Wxxxxxx 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.
(iiic) The On the date hereof, the Initial Purchasers shall have received from Xxxxx Xxxxxxxx, independent registered public accountants for the Company, on each of EisnerAmper LLP a comfort letter dated the date hereof and the Closing Datehereof, in form and substance reasonably satisfactory to counsel for the Initial Purchasers and counsel to the Initial Purchasers, letters dated the date hereof and the Closing Date confirming that is an independent registered public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the audited and any unaudited financial statements and certain financial and statistical information contained or incorporated by reference in the Pricing Disclosure Package Package. On the Closing Date and any Option Closing Date, the Offering Memorandum.
(iv) The Initial Purchasers shall have received from each the Independent Accountants a comfort letter dated the Closing Date or the Option Closing Date, as the case may be, 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 officers information stated in the comfort letter dated the date hereof and directors listed on Schedule III hereto an executed Lock-Up Agreement similarly address the audited and any unaudited financial information in substantially the form of Exhibit F heretoFinal Offering Memorandum.
(vd) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Time of Execution and on and as of the Closing Date and any Option Closing Date as if made on and as of such Closing Date or Option Closing Date; the statements of the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of such Closing Date or Option Closing Date; the Company shall have complied performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date or Option Closing Date; and, except as described in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Pricing Disclosure Package and the Final Offering Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined (temporarily or permanently) on the Closing Date or any Option Closing Date.
(f) Subsequent to the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), none of the Company or any of the Subsidiaries shall have sustained any loss or interference with respect to its business or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any strike, labor dispute, slow down or work stoppage or from any legal or governmental proceeding, order or decree, which loss or interference, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate of the Company, dated the Closing Date and any Option Closing Date, as the case may be, signed on behalf of the Company by its Chairman of the Board, President or any Senior Vice President and the Chief Financial Officer, to the effect that:
(i) the representations and warranties of the Company contained in this Agreement are true and correct on and as of the Time of Execution and on and as of such Closing Date or Option Closing Date, and the Company has performed all material respects with all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the such Closing Date or Option Closing Date.;
(viii) None of the issuance and sale of the Securities pursuant to this Agreement at such Closing Date or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal actionOption Closing Date, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to since the date of this Agreement and hereof or since the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred development has occurred, and no information has become known, that, individually or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of whichaggregate, in the judgment of the Initial Purchasers, is so material and adverse as has or would be reasonably likely to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state have a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.Material Adverse Effect; and
(viiiiii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have Notes hereunder has not been enjoined (temporarily or permanently).
(h) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against An application for the listing of the Common Stock that the Company relating is authorized to issue as of the date hereof shall have been submitted to the issuance NYSE MKT.
(i) The Company shall have caused each executive officer, director and shareholder of the Securities or Company set forth on Schedule 3 hereto to execute and deliver to the Initial Purchasers’ activities in connection therewith , on or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent prior to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) Since the date of this Agreement, there shall not have been any announcement by any a letter or letters, substantially in the form attached hereto as Annex C (the “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determinedLock-up Agreement”).
(xij) The Company shall have furnished or caused amended its asset-based revolving senior secured credit facility with General Electric Capital Corporation, as agent for GE Capital Bank, in form and substance reasonably satisfactory to be furnished to counsel for the Initial Purchasers such further certificates Purchasers. On or before the Closing Date and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(xii) At the Option Closing Date, the Company Initial Purchasers and the Trustee shall have entered into the Indenture and counsel for the Initial Purchasers shall have received counterpartssuch further documents, conformed as executedcertificates, thereof letters and schedules or instruments relating to the Notes shall have been duly executed business, corporate, legal and delivered by financial affairs of the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of Subsidiaries as they shall have heretofore reasonably requested from the Notes will be duly listed, subject to notice of issuance, for quotation on NasdaqCompany. All such documents, opinions, certificates, letters, schedules, documents 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 to for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such documents, opinions, certificates, letters, schedules, documents schedules and instruments in such quantities as the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The several obligations of the Initial Purchasers to purchase and pay for the Notes are shall be subject to accuracythe accuracy of the representations and warranties of the Company in Section 2 hereof, when in each case as of the date hereof and as of the Closing Date, as if made and on and as of the Closing Date, to the accuracy of the representations and warranties statements of the Company contained hereinCompany’s officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder, covenants and agreements hereunder and the consummation of the sale and purchase of the Notes and to each of the following additional terms and conditions:
(i) The Initial Purchasers shall have received opinions in form and substance reasonably satisfactory to the Initial Purchasers, dated the Closing Date, of Xxxxxx and Xxxxx, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E hereto.
(iia) The Initial Purchasers shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchasersopinion, dated the Closing Date, of Hunton & Xxxxxxxx LLP, counsel for the Company, to the effect set forth in Exhibit C hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Counsel for the Initial Purchasers, with respect to the sufficiency issuance and sale of certain legal matters relating to this Agreement the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such Counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such Counsel may rely as to certain matters of Virginia law upon the opinion of Hunton & Xxxxxxxx LLP referred to in paragraph (a) above.
(iiic) The Initial Purchasers shall have received from Xxxxx Xxxxxxxxboth Deloitte & Touche LLP and Ernst & Young LLP letters dated, independent registered public accountants for the Companyrespectively, on each of the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and counsel to the Initial Purchasers, letters dated the date hereof and the Closing Date confirming that is an independent registered public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is of the type ordinarily included in accountants’ “comfort letters” letters to underwriters and other placement agents with respect to the financial statements information included in and certain financial and statistical information contained or incorporated by reference in the Disclosure Package and into the Offering Memorandum.
(ivd) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(v) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Closing Date and the Company shall have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement and since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of which, in the judgment of the Initial Purchasers, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(viii) The Initial Purchasers shall have received certificatescertificate, dated the Closing Date and signed by Date, of the president and chief executive officer Chief Financial Officer and the chief financial officer Treasurer of the Company (in their capacities as such), to the effect that:
a. All of (i) the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date andDate; the General Disclosure Package and the Final Offering Memorandum, as amended or supplemented as of the Closing Date all agreementsDate, conditions and obligations does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed, performed or satisfied or complied with hereunder on at or prior to the Closing Date have been duly performed, satisfied or complied with Date; and
(ii) subsequent to the date as of which information is given in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the General Disclosure Package and the Final Offering Memorandum and Memorandum, neither the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily Company nor its subsidiaries has sustained any material loss or permanently) and no restraining order interference with their respective businesses or properties from fire, flood, hurricane, accident or other injunctive order has been issued calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding, and there has not been any legal actionMaterial Adverse Effect, orderor any development involving a prospective Material Adverse Effect, decree except in each case as described in or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the General Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after thereto).
(e) Subsequent to the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) Since the date of this Agreement, there shall not have been any announcement decrease in the rating of any of the Company’s debt securities (including the Notes) by any “nationally recognized statistical rating organization,” (as defined for purposes of Rule 436(g) under the Securities Act, ) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that (A) it is downgrading its rating assigned to any debt securities does not indicate the direction of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determinedchange.
(xif) The Company shall have furnished or caused to be furnished to been advised by the Initial Purchasers such further certificates National Association of Securities Dealers, Inc. that the Notes have been designated PORTAL-eligible securities in accordance with the rules and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale regulations of the Securities as contemplated herein, or NASD relating to trading in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this AgreementPORTAL Market.
(xiig) At The Notes shall be eligible for clearance and settlement through the Depositary.
(h) On or before the Closing Date, the Company Initial Purchasers and the Trustee shall have entered into the Indenture and Counsel for the Initial Purchasers shall have received counterpartssuch further certificates, conformed documents or other information as executed, thereof and they may have reasonably requested from the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the Notes will be duly listed, subject to notice of issuance, for quotation on NasdaqCompany. All such opinions, certificates, letters, schedules, letters and documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers and counsel to Counsel for the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, letters and documents and instruments in such quantities as the Initial Purchasers and Counsel for the Initial Purchasers shall reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Alliance One International, Inc.)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes are Securities shall, in its sole discretion, be subject to accuracythe satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, when made and on and the Initial Purchaser shall have received the opinion, dated as of the Closing DateDate and addressed to the Initial Purchaser, of Mayex, Xxown & Platx xxxnsel for the representations and warranties of the Company contained hereinCompany, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(i) The Initial Purchasers shall have received opinions in form and substance reasonably satisfactory to counsel for the Initial PurchasersPurchaser.
(b) On the Closing Date, the Initial Purchaser shall have received opinions dated the Closing Date and addressed to the Initial Purchaser and the Trustee, of local counsel for each of the Subsidiary Guarantors listed on Schedule 3 hereto, in form and substance reasonably satisfactory to counsel for the Initial Purchaser.
(c) On the Closing Date, the Initial Purchaser shall have received opinions, dated the Closing DateDate and addressed to the Initial Purchaser, of Xxxxxx local counsel for the Company and Xxxxxthe Subsidiaries, LLP, in each of the jurisdictions listed on Schedule 4 hereto substantially in the form of the local counsel opinions delivered pursuant to the Company, covering the matters set forth on Exhibit B hereto, provisions of the General Counsel for the CompanySenior Credit Facility, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel relating to the Companycreation, enforceability and perfection of the security interests and Liens created by the Security Documents delivered in accordance therewith, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E hereto.
(ii) The Initial Purchasers such changes thereto as shall have received an opinion of Xxxxxx & Xxxxxxx LLP, be reasonably requested by counsel to the Initial PurchasersPurchaser and, dated the Closing Date, with respect in form and substance satisfactory to the sufficiency of certain legal matters relating to this Agreement and such other related matters as counsel for the Initial Purchasers may requirePurchaser.
(iiie) The Initial Purchasers Purchaser shall have received from Xxxxx Xxxxxxxx, independent registered public accountants for the Company, on each of Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance reasonably satisfactory to counsel for the Initial Purchasers and counsel to the Initial Purchasers, letters dated the date hereof and the Closing Date confirming that is an independent registered public accountant within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained or incorporated by reference in the Disclosure Package and the Offering MemorandumPurchaser.
(iv) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(vf) The representations and warranties of the Company and the Subsidiary Guarantors contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of 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 and the Subsidiary Guarantors shall have complied in performed all material respects with 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, except as described in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Final Memorandum, there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(vig) None of the issuance and The sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents hereunder shall not be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against on the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering DocumentsClosing Date.
(viih) Subsequent The Initial Purchaser shall have received a certificate of the Company and each of the Subsidiary Guarantors, dated the Closing Date, signed on behalf of the Company by its Chief Executive Officer, Chief Financial Officer or Chief Operating Officer and any Vice President and signed on behalf of each of the Subsidiary Guarantors by two officers of each of the Subsidiary Guarantors, to the date effect that:
(i) The representations and warranties of the Company and the Subsidiary Guarantors contained in this Agreement are true and correct on and as of the date hereof and on and as of the Closing Date, and the Company and the Subsidiary Guarantors have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) Securities will have a valid and perfected lien on the Collateral and subject to no Liens, other than Liens permitted by the Indenture and the Security Documents;
(iii) At the Closing Date, since the date hereof or since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Offering Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred development has occurred, and no information has become known, that, individually or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of whichaggregate, in the judgment of the Initial Purchasers, is so material and adverse as has or would be reasonably likely to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state have a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.Material Adverse Effect; and
(viiiiv) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have hereunder has not been enjoined (temporarily or permanently).
(i) and no restraining order or other injunctive order has been issued and there has not been any legal actionOn the Closing Date, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this Purchaser shall have received the Registration Rights Agreement, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package Indenture and the Offering Memorandum (exclusive of any amendment or supplement thereto after Security Documents executed by the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package Company and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(ix) Each of the Offering Documents Subsidiary Guarantors and each other such agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, effect at all times from and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since after the date of this AgreementClosing Date.
(xj) Since On the date of this AgreementClosing Date, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under Amendment No. 6 to the Securities ActSenior Credit Facility, that (A) it is downgrading its rating assigned to any debt securities of in the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished form previously delivered to the Initial Purchasers such further certificates Purchaser, shall be in full force and documents as effect or the Initial Purchasers Purchaser shall have reasonably requested for received, in form and substance satisfactory to the purposes of enabling them Initial Purchaser and counsel to pass upon the issuance and sale of Initial Purchaser, such consents, amendments or approvals required in connection with the Securities as contemplated herein, or Company's Senior Credit Facility in order to evidence issue and sell the accuracy of any of Securities and consummate the representations and warranties, other transactions contemplated hereby. On or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(xii) At before the Closing Date, the Company Initial Purchaser and the Trustee shall have entered into the Indenture and counsel for the Initial Purchasers Purchaser shall have received counterpartssuch further documents, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the Notes will be duly listed, subject to notice of issuance, for quotation on Nasdaq. All such opinions, certificates, letters, schedules, documents letters and schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects relating to the Initial Purchasers business, corporate, legal and counsel to financial affairs of the Initial Purchasers. The Company and the Subsidiaries as they shall furnish to have heretofore reasonably requested from the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably requestCompany.
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 8, “Closing Date” shall refer to the Closing Date for the Firm Notes and any Additional Closing Date for the Optional Notes. The obligations of the Initial Purchasers to purchase and pay for the Notes are Securities shall be subject to accuracy, when made and on and as of the Closing Date, accuracy of the representations and warranties of the Company contained hereinand the Guarantors in Section 3 hereof, in each case on and as of the Applicable Time and on and as of the applicable Closing Date, as if made on and as of the Applicable Time and on and as of the applicable Closing Date, to the accuracy of the statements of the Company’s and the Guarantors’ officers made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of its obligations hereunder, their respective covenants and agreements hereunder and to each of the following additional terms and conditions:
(ia) The Company shall furnish to the Initial Purchasers at the Closing Date and the Option Closing Date the opinion of Xxxxxxxx & Xxxxxxxx LLP, corporate counsel for the Company, the Guarantors and the Subsidiaries, addressed to the Representatives and dated the Closing Date and the Option Closing Date, substantially in the form of Exhibit A hereto.
(b) The Company shall furnish to the Initial Purchasers at the Closing Date and the Option Closing Date the opinion of Xxxxxxx LLP, special Maryland counsel for the Guarantors, addressed to the Representatives and dated the Closing Date and the Option Closing Date, substantially in the form of Exhibit B hereto.
(c) On the date of this Agreement and at the Initial Closing Date and the Option Closing Date (if applicable), the Initial Purchasers shall have received from Xxxxx Xxxxxxxx LLP letters dated the respective dates of delivery thereof and addressed to the Representatives, in form and substance satisfactory to the Representatives, containing statements and information of the type specified in AU Section 634 “Letters for Underwriters and Certain other Requesting Parties” issued by the American Institute of Certified Public Accountants with respect to the Financial Statements and certain financial information of the Company, the Guarantors and the Subsidiaries included in the Disclosure Package and the Final Circular, and such other matters customarily covered by comfort letters issued in connection with registered public offerings; provided, that the letters delivered at the Initial Closing Date and the Option Closing Date (if applicable) shall use a “cut-off” date no more than three business days prior to such Initial Closing Date and the Option Closing Date, as the case may be.
(d) The Initial Purchasers shall have received opinions in form at the Initial Closing Date and substance reasonably satisfactory to the Option Closing Date the favorable opinion of and a negative assurance letter from Hunton & Xxxxxxxx LLP, counsel for the Initial Purchasers, addressed to the Representatives and dated the Initial Closing Date, of Xxxxxx and Xxxxx, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E hereto.
(ii) The Initial Purchasers shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Initial Purchasers, dated the Closing Date, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may require.
(iii) The Initial Purchasers shall have received from Xxxxx Xxxxxxxx, independent registered public accountants for the Company, on each of the date hereof Date and the Option Closing Date, in form and substance satisfactory to the Initial Purchasers. In addition, the Initial Purchasers shall have received at the Initial Closing Date and the Option Closing Date, (i) the favorable opinion of Hunton & Xxxxxxxx LLP, counsel for the Initial Purchasers, as to certain federal income tax matters, substantially in the form of Exhibit C hereto, and (ii) the favorable opinion of Hunton & Xxxxxxxx LLP, counsel for the Initial Purchasers, to the effect that the Company and the Guarantors are not, and the transactions contemplated by this Agreement will not cause the Company or the Guarantors to become, an “investment company” as such term is defined under the Investment Company Act, substantially in the form of Exhibit D hereto, each addressed to the Representatives and dated the Initial Closing Date and the Option Closing Date.
(e) No amendment or supplement to the Disclosure Package and the Final Circular shall have been filed to which the Representatives shall have objected in writing prior to the filing thereof.
(f) Between the time of execution of this Agreement and the Initial Closing Date or the Option Closing Date, there shall not have been any Material Adverse Change.
(g) At the Initial Closing Date, the Underlying Shares shall have been accepted for listing on the NYSE, subject to notice of issuance, and have been reserved for issuance by NRF.
(h) The Initial Purchasers shall have received, at the Initial Closing Date and the Option Closing Date, a certificate of two of NRF’s executive officers, to the effect that:
(i) the representations and warranties of the Company and the Guarantors in this Agreement are true and correct, as if made on and as of the Initial Closing Date and the Option Closing Date, as applicable, and the Company and the Guarantors have complied with all of their respective obligations hereunder and satisfied all of the conditions on their part to be performed or satisfied at or prior to the at the Initial Closing Date and the Option Closing Date, as applicable; and
(ii) subsequent to the respective dates as of which information is given in the Disclosure Package and the Final Circular, there has not been (A) any Material Adverse Change, (B) any transaction that is material to the Company or the Guarantors and their respective subsidiaries taken as a whole, (C) any obligation, direct or contingent, that is material to the Company and its subsidiaries, taken as a whole, incurred by the Company, the Guarantors or the Subsidiaries, (D) any change in the capital stock or outstanding indebtedness of the Company, the Guarantors or any Subsidiary that is material to the Company, the Guarantors and any of their respective subsidiaries, taken as a whole, or (E) any loss or damage (whether or not insured) to the Properties which has been sustained or will have been sustained which would reasonably be expected to have a Material Adverse Effect.
(i) On or prior to the Initial Closing Date, the Initial Purchasers shall have received an agreement substantially in the form of Exhibit E hereto signed by the persons listed in Schedule III hereto.
(j) All corporate and partnership proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the Transaction Documents and all legal matters relating thereto shall be reasonably satisfactory to counsel to the Initial Purchasers and counsel to the Initial Purchasers, letters dated the date hereof Purchasers shall have received copies of such papers and documents as they may reasonably request in connection therewith to enable them to pass upon such legal matters.
(k) The Company and the Closing Date confirming that is an independent registered public accountant within Guarantors shall have furnished to the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing Initial Purchasers such other statements documents and information certificates as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements accuracy and certain financial and statistical information contained or incorporated by reference completeness of any statement in the Disclosure Package and the Offering Memorandum.
(iv) The Initial Purchasers shall have received from each of the officers and directors listed on Schedule III hereto an executed Lock-Up Agreement in substantially the form of Exhibit F hereto.
(v) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Closing Date and the Company shall have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vi) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or any other transactions contemplated by this AgreementFinal Circular, the Disclosure Packagerepresentations, the Offering Memorandum, or the other Offering Documents.
(vii) Subsequent to the date of this Agreement warranties and since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) shall have occurred or exist which event or condition is not disclosed in the Disclosure Package and the Offering Memorandum the effect of which, in the judgment of the Initial Purchasers, is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers Guarantors contained herein, and its counselthe performance by the Company and the Guarantors of their covenants contained herein, requires and the making fulfillment of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(viii) The Initial Purchasers shall have received certificates, dated the Closing Date and signed by the president and chief executive officer and the chief financial officer of the Company (in their capacities as such), to the effect that:
a. All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date andconditions contained herein, as of the Initial Closing Date all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respects.
b. The issuance and sale of the Securities pursuant to this Agreement, the Disclosure Package and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ activities in connection therewith or in connection with any other transactions contemplated by this AgreementOption Time, the Disclosure Package, the Offering Memorandum, or the other Offering Documents.
c. Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2 (q) shall have occurred or exist which event or condition is, not disclosed in the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, or any of their respective officers or directors that makes any material statement made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
(ix) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers and shall have been executed and delivered by all the respective parties thereto (other than the Initial Purchasers) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(x) Since the date of this Agreement, there shall not have been any announcement by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined.
(xi) The Company shall have furnished or caused to be furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreement.
(xii) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts, conformed as executed, thereof and the Notes shall have been duly executed and delivered by the Company and duly authenticated by the Trustee.
(xiii) The shares of Common Stock issuable upon conversion of the Notes will be duly listed, subject to notice of issuance, for quotation on Nasdaq. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects prior to the Initial Purchasers and counsel to the Initial Purchasers. The Company shall furnish to the Initial Purchasers such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchasers shall reasonably requestdate hereof.
Appears in 1 contract
Samples: Purchase Agreement (Northstar Realty Finance Corp.)
Conditions of the Initial Purchasers’ Obligations. For purposes of this Section 87, “Closing Date” shall refer to the Closing Date for the Firm Notes Units and any Additional Closing Date for the Optional NotesUnits. The obligations of the Initial Purchasers Purchaser to purchase and pay for the Notes Units are subject to accuracythe absence from any certificates, when made and on and as of the Closing Dateopinions, of the representations and warranties of the Company contained herein, written statements or letters furnished to the performance by the Company Initial Purchaser pursuant to this Section 7 of its obligations hereunder, any misstatement or omission and to each of the following additional terms and conditions:conditions unless waived in writing by the Initial Purchaser.
(ia) The Initial Purchasers Purchaser shall have received opinions an opinion in form and substance reasonably satisfactory to the Initial PurchasersPurchaser, dated the Closing Date, of Xxxxxx and XxxxxMxxxxx, Mxxxxxx & Mxxxxx, LLP, counsel to the Company, covering the matters set forth on Exhibit B hereto, of the General Counsel for the Company, covering the matters set forth on Exhibit C hereto, of Zhong Lun Law Firm, counsel to the Company, with respect to Global Technologies, Inc. and covering the matters set forth on Exhibit D hereto, and of Xxxxxx and Xxxxxx (Hong Kong) LLP, counsel to the Company, with respect to Prime World International Holding Ltd. and covering the legal matters set forth on Exhibit E A hereto.
(iib) The Initial Purchasers Purchaser shall have received an opinion of Xxxxxx & Xxxxxxx LLPMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (“Mintz Lxxxx”), counsel to the Initial PurchasersPurchaser, dated the Closing Date, with respect to the sufficiency of certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers Purchaser may require.
(iiic) The Initial Purchasers Purchaser shall have received from Xxxxx XxxxxxxxMxxxxx Rxx Xxxxxx & Sxxxxxx LLP, independent public registered public accountants accounting firm for the Company, on each of the date hereof and the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers Purchaser and counsel to the Initial PurchasersMxxxx Lxxxx, letters dated the date hereof and the Closing Date confirming that Mxxxxx Rxx Xxxxxx & Sxxxxxx LLP is an independent public registered public accountant accounting firm within the meaning of the Exchange Act and the applicable published rules and regulations thereunder and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” to underwriters with respect to the audited financial statements for the fiscal years ended April 30, 2005 and 2006 and certain financial and statistical information contained or incorporated by reference in the Disclosure Package and the Offering Memorandum.
(ivd) The Initial Purchasers Purchaser shall have received from each of the officers and directors listed on Schedule III 7(d) hereto an executed Lock-Up Agreement in substantially the form of Exhibit F B hereto.
(ve) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Closing Date Date, and the Company shall have complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(vif) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by this Agreement or any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, rule, regulation, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Initial Purchasers Purchaser relating to the issuance of the Securities or the Initial Purchasers’ Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement, the Disclosure Package, Agreement or the Offering Memorandum, Memorandum or the other Offering Documents.
(viig) Subsequent to the date of this Agreement and since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or condition of a type described in Section 2(q) there shall not have occurred (i) any change, or exist which event any development involving a prospective change in, or affecting the business, condition is (financial or other), properties or results of operations of, the Company or any Subsidiary not disclosed in the Disclosure Package and the Offering Memorandum the effect of whichthat is, in the judgment of the Initial PurchasersPurchaser (in its sole discretion), is so material and adverse as to make it impracticable or inadvisable to proceed with the offering of the Securities Offering on the terms and in the manner contemplated by the Disclosure Package and the Offering Memorandum, or (ii) any event or development relating to or involving the Company or any subsidiary, Subsidiary or any of their respective officers or directors that makes any statement of a material statement fact made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Initial Purchasers Purchaser and its counsel, requires the making of any addition to or change in the Disclosure Package and the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, therein not misleading.
(viiih) The Initial Purchasers Purchaser shall have received certificatesa certificate, dated the Closing Date and signed by the president and chief executive officer President and the chief financial officer Chief Executive Officer of the Company (in their capacities as such)Company, to the effect that:
a. (i) All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Closing Date and, as of the Closing Date Date, all agreements, conditions and obligations of the Company to be performed, satisfied or complied with hereunder on or prior the Closing Date have been duly performed, satisfied or complied with in all material respectswith.
b. (ii) The issuance and sale of the Securities Units pursuant to this Agreement, the Disclosure Package Agreement and the Offering Memorandum and the consummation of the transactions contemplated by the Offering Documents have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or, to such officers’ knowledge, threatened against the Company relating to the issuance of the Securities or the Initial Purchasers’ Purchaser’s activities in connection therewith or in connection with any other transactions contemplated by this Agreement, the Disclosure Package, Agreement or the Offering Memorandum, Memorandum or the other Offering Documents.
c. (iii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Disclosure Package and the Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event there has not occurred (A) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties or results of a type described in Section 2 (q) shall have occurred operations of the Company or exist which event or condition isany Subsidiary, not disclosed in the Disclosure Package and contemplated by the Offering Memorandum, or (iiB) any event or development relating to or involving the Company or any subsidiary, Subsidiary or any of their respective officers or directors that makes any statement of a material statement fact made in the Disclosure Package and the Offering Memorandum untrue or that requires the making of any addition to or change in the Disclosure Package or the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, therein not misleading.
(ixiv) At the Closing Date and after giving effect to the consummation of the transactions contemplated by the Offering Memorandum, there shall exist no Default or Event of Default (as defined in the Indenture).
(i) Each of the Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be reasonably satisfactory in form and substance to the Initial Purchasers Purchaser and shall have been executed and delivered by all the respective parties thereto (other than the Initial PurchasersPurchaser) and shall be in full force and effect, and there shall have been no material amendments, alterations, modifications or waivers of any provision thereof since the date of this Agreement.
(xj) Since All proceedings taken in connection with the date issuance of the Units and the transactions contemplated by this Agreement, there the other Offering Documents and all documents and papers relating thereto shall not be satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(k) The Notes and Warrants shall have been any announcement approved for trading on PORTAL.
(l) On or before the Closing Date, the Initial Purchaser shall have received the Registration Rights Agreement executed by any “nationally recognized statistical rating organization,” as defined for purposes of Rule 436(g) under the Securities Act, that (A) it is downgrading its rating assigned to any debt securities of the Company, or (B) it is reviewing its rating assigned to any debt securities of the Company with a view to possible downgrading, or with negative implications, or direction not determinedand such agreement shall be in full force and effect.
(xim) The Company shall have furnished or caused to be furnished to the Initial Purchasers Purchaser all Required Consents and Waivers (in form and substance satisfactory to the Initial Purchaser and its counsel) and such further certificates and documents as the Initial Purchasers Purchaser shall have reasonably requested for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the closing conditions or other obligations, contained in this Agreementrequested.
(xiin) At the Closing Date, the Company and the Trustee shall have entered into the Indenture and the Initial Purchasers Purchaser shall have received counterparts, conformed as executed, thereof and the Notes and the Guarantors endorsed thereon shall have been duly executed and delivered by the Company and the Guarantors, respectively, and the same shall have been duly authenticated by the Trustee.
(o) At the Closing Date, the Company and the Warrant Agent shall have entered into the Warrant Agreement and the Initial Purchaser shall have received counterparts, conformed as executed, thereof and the Warrants shall have been duly executed and delivered by the Company and duly authenticated by the TrusteeWarrant Agent.
(xiiip) The Company shall have granted and delivered to the Initial Purchaser or its designated nominees warrants to purchase a number of shares of Common Stock issuable upon conversion equal to 4% of the Notes will number of Underlying Shares, such warrants to be duly listedexercisable for a period of three years from the Closing Date at an initial exercise price equal to the volume weighted average price of the Common Stock during the 20 trading days ending on and including the trading day that is two trading days prior to the date of this Agreement. Such warrants shall contain provisions, subject including, without limitation, those pertaining to notice of issuancecashless exercise, for quotation on Nasdaqantidilution protection and demand and piggyback registration rights, customarily contained in warrants received by the Initial Purchaser in investment banking and financing transactions. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to the Initial Purchasers Purchaser and counsel to the Initial PurchasersPurchaser. The Company shall furnish to the Initial Purchasers Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Initial Purchasers Purchaser shall reasonably request.
Appears in 1 contract
