Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers to purchase and pay for the Notes shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date: (a) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Akin, Gump, Strauss, Hauex & Xeld, X.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Initial Purchasers, substantially to the effect that: (i) The Company is duly incorporated, validly existing and in good standing under the laws of Texas and has all requisite corporate power and authority to own its properties and to conduct its business as described in the Final Memorandum. The Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect. (ii) The Company has the authorized, issued and outstanding capitalization set forth in the Final Memorandum. (iii) To the knowledge of such counsel, except as set forth in the Final Memorandum (A) no options, warrants or other rights to purchase from the Company shares of capital stock or ownership interests in the Company are outstanding, (B) no agreements or other obligations of the Company to issue, or other rights to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company are outstanding and (C) no holder of securities of the Company is entitled to have such securities registered under a registration statement filed by the Company pursuant to the Registration Rights Agreement. (iv) The Company has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Indenture, the Notes, the Exchange Notes and the Private Exchange Notes; the Indenture has been duly and validly authorized by the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding (regardless of whether brought in a proceeding in equity or at law therefor may be brought. (v) The Notes are in the form contemplated by the Indenture. The Notes have each been duly and validly authorized by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding (regardless of whether brought in a proceeding in equity or at law) therefor may be brought. (vi) The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the Company, and when the Exchange Notes and the Private Exchange Notes have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture and assuming the valid tender of the Notes pursuant to the exchange offer as provided for in the Registration Rights Agreement), will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding (regardless of whether brought in a proceeding in equity or at law) therefor may be brought. (vii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will constitute the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding (regardless of whether brought in a proceeding in equity or at law) therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations. (viii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Company. This Agreement has been duly executed and delivered by the Company. (ix) The Indenture, the Notes and the Registration Rights Agreement conform as to legal matters in all material respects to the descriptions thereof contained in the Final Memorandum. (x) To the knowledge of such counsel, no legal or governmental proceedings are pending or threatened to which the Company is a party or to which the property or assets of the Company is subject which, if determined adversely to the Company would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Final Memorandum under the caption "Use of Proceeds." (xi) To the knowledge of such counsel, the Company is not (i) in violation of its articles of incorporation or bylaws (or similar organizational document), (ii) to the knowledge such counsel, in breach or violation of any statute, judgment, decree, order, rule or regulation applicable to it or any of its properties or assets, except for any such breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect, or (iii) in breach or default under (nor has any event occurred which, with notice or passage of time or both, would constitute a default under) or in violation of any of the terms or provisions of any Contract known to such counsel and specified in such opinion, except for any such breach, default, violation or event which would not, individually or in the aggregate, have a Material Adverse Effect. (xii) The execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Notes to the Initial Purchasers)
Appears in 1 contract
Samples: Purchase Agreement (FWT Inc)
Conditions of the Initial Purchasers’ Obligations. The obligation obligations of the Initial Purchasers to purchase and pay for the Notes shall, in their sole discretion, be subject to the accuracy of the representations and warranties of the Company contained herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the satisfaction or waiver of the following additional conditions precedent on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received the opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Akin, Gump, Strauss, Hauex Ballxxx Xxxxx Xxxxxxx & Xeld, X.L.P.Xngersoll, counsel for the Company, in form and substance satisfactory to counsel for the Initial Purchasers, substantially to the effect that:
(i) The Each of the Company is and the Subsidiaries has been duly incorporated, is validly existing and in good standing presently subsisting under the laws of Texas its respective jurisdiction of incorporation and has all requisite corporate power and authority to own own, lease and operate its properties and to conduct its business as described in the Final Memorandum. The Company is duly qualified to do business as a foreign corporation in good standing in all other the jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effectset forth on Schedule 3 hereto.
(ii) The Company has the authorized, issued and outstanding capitalization Except as set forth in or contemplated by the Final Memorandum.
(iii) To , to the knowledge of such counsel, except as set forth in the Final Memorandum (A) no options, warrants or other rights to purchase from the Company shares of capital stock or ownership interests in the Company are outstanding, (B) no agreements or other obligations of the Company to issue, or other rights to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company are outstanding and (C) no holder of securities of the Company is entitled to have such securities registered under a registration statement filed by the Company pursuant to the Registration Rights Agreement.
(iii) To the knowledge of such counsel, no legal or governmental proceedings are pending to which the Company or any of the Subsidiaries is a party or to which the property or assets of the Company or any of the Subsidiaries are subject which would be required under the Act to be described in a registration statement or in a prospectus and are not described in the Final Memorandum or in a document incorporated by reference therein, or which seek to restrain, enjoin, prevent the consummation by the Company of or otherwise challenge the issuance or sale of the Notes to be sold hereunder to the Initial Purchasers, the consummation of the transactions contemplated hereby or the application of the net proceeds therefrom as described in the Final Memorandum under the caption "Use of Proceeds."
(iv) The Company has all requisite the corporate power and authority to execute, deliver and perform each of its obligations under the Indenture, the Notes, the Exchange Notes and the Private Exchange Notes; the form of the Indenture meets the requirements for qualification under the TIA; the Indenture has been duly and validly authorized by all requisite corporate action of the Company and, when duly executed and delivered by the Company (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute the legal, valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (iA) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally (including applicable fraudulent transfer laws) and (iiB) general principles of equity equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether enforceability is considered in a proceeding at law or in equity) and the discretion of the court before which any proceeding (regardless of whether brought in a proceeding in equity or at law therefor may be brought.
(v) The Notes are in the form contemplated by the Indenture. The Notes have each been duly and validly authorized by all requisite corporate action of the Company and, and when duly executed and delivered by the Company and paid for by the Initial Purchasers in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding (regardless of whether brought in a proceeding in equity or at law) therefor may be brought.the
(vi) The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by all requisite corporate action of the CompanyCompany and, and when the Exchange Notes and the Private Exchange Notes have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture and assuming the valid tender of the Notes pursuant to the exchange offer as provided for no changes in the Registration Rights Agreementlaw from the date thereof), will constitute the legal, valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (iA) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally (including applicable fraudulent transfer laws) and (iiB) general principles of equity equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether enforceability is considered in a proceeding at law or in equity) and the discretion of the court before which any proceeding (regardless of whether brought in a proceeding in equity or at law) therefor may be brought.
(vii) The Company has all requisite the corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by all requisite corporate action of the Company and, when duly executed and delivered by the Company (assuming due authorization, execution and delivery thereof by the Initial Purchasers), will constitute the legal, valid and legally binding agreement of the Company, Company enforceable against the Company in accordance with its terms, except that (A) the enforcement thereof may be subject to (ix) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally (including applicable fraudulent transfer laws) and (iiy) general principles of equity equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether enforceability is considered in a proceeding at law or in equity) and the discretion of the court before which any proceeding (regardless of whether brought in a proceeding in equity or at law) therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.brought
(viii) The Company has all requisite the corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; this Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Company. This Agreement has been duly authorized, executed and delivered by the Company.
(ix) The Indenture, the Notes, the Exchange Notes and the Registration Rights Agreement conform as to legal matters in all material respects to the descriptions thereof contained in the Final Memorandum.
(x) To The execution and delivery of this Agreement, the knowledge of such counsel, no legal or governmental proceedings are pending or threatened to which Indenture and the Company is a party or to which the property or assets of the Company is subject which, if determined adversely to the Company would result, individually or in the aggregate, in a Material Adverse Effect, or which seeks to restrain, enjoin, prevent Registration Rights Agreement and the consummation of or otherwise challenge the transactions contemplated hereby and thereby (including the issuance or and sale of the Notes to be sold hereunder the Initial Purchasers) will not constitute or result in a breach of or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (A) the terms or provisions of any indenture, mortgage, deed of trust, loan agreement, note or other agreement or instrument filed or incorporated by reference as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1996 or the consummation of Company's Quarterly Report on Form 10-Q for the other transactions described in quarter ended March 31, 1997 or any material agreement or instrument entered into by the Final Memorandum under the caption "Use of Proceeds."
(xi) To the knowledge of Company subsequent to March 31, 1997 known to such counsel, (B) the Company is not (i) in violation of its articles of incorporation or bylaws of the Company, or (C) assuming compliance with all applicable state securities or similar organizational document)"Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 8 hereof, (ii) to the knowledge such counsel, in breach any United States federal or violation of any Pennsylvania statute, judgment, decree, order, rule or regulation of, or judgment, decree or order applicable to it the Company issued by, any governmental authority or regulatory body having jurisdiction over the Company of which such counsel is aware, which, in such counsel's experience, is normally applicable both to general business corporations which are not engaged in regulated business activities and to transactions of the type contemplated by the Final Memorandum (but without having made any special investigation as to other laws and provided that such opinion need not cover any laws or regulations to which the Company or its affiliates may be subject as a result of its properties the Initial Purchasers' legal or assetsregulatory status or the involvement of the Initial Purchasers in such transaction), except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect.
(xi) To the knowledge of such counsel, no consent, approval, authorization or order of, or (iii) in breach qualification with, any United States Federal or default under (nor has any event occurred which, with notice or passage of time or both, would constitute a default under) or in violation of any Pennsylvania governmental authority is required to be obtained by the Company for the issuance and sale by the Company of the terms Notes to the Initial Purchasers or provisions of any Contract known the other -15- 16 transactions contemplated hereby, except such as may be required under "Blue Sky" laws, as to which such counsel and specified in such need express no opinion, and those which have previously been obtained, except for any where the failure to obtain such breach, default, violation consents or event which waivers would not, individually or not result in the aggregate, have a Material Adverse EffectEffect and except that the exchange offer and certain resales contemplated by the Registration Rights Agreement require effective registration statements under the Act and the qualification of the Indenture under the TIA.
(xii) The No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchasers as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchasers in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (A) that the purchasers who buy such Notes in the initial resale thereof are "qualified institutional buyers" as defined in Rule 144A promulgated under the Act ("QIBs"), institutional "accredited investors" as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Act ("Accredited Investors") or foreign persons under Regulation S, (B) the accuracy of the Initial Purchasers' representations in Section 8 and those of the Company contained in this Agreement regarding the absence of a general solicitation in connection with the sale of such Notes to the Initial Purchasers and the initial resale thereof, (C) the due performance by the Initial Purchasers of the agreements set forth in Section 8 hereof and (D) the accuracy of the representations made by each Accredited Investor who purchases Notes in the initial resale as set forth in the Final Memorandum.
(xiii) None of the execution, delivery and performance of this Agreement, the Indentureexecution, delivery, issuance and sale of the Notes, the Registration Rights Agreement and the consummation application of the transactions contemplated hereby and thereby (including, without limitation, proceeds from the issuance and sale of the Notes and the consummation of the transactions each as contemplated by this Agreement and the Final Memorandum will violate Regulation G, T, U or X promulgated by the Board of Governors of the Federal Reserve System.
(xiv) No securities of the Company are of the same class (within the meaning of Rule 144A under the Act) as the Notes and listed on a national securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
(xv) The documents incorporated by reference in the Final Memorandum (the "Exchange Act Documents") when they were filed with the Commission complied as to form in all material respects with the Initial Purchasers)requirements of the Exchange Act and the rules and regulations thereunder; it being understood that such counsel
Appears in 1 contract
Conditions of the Initial Purchasers’ Obligations. The obligation of the Initial Purchasers Purchaser to purchase and pay for the Notes shall, in their its sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) A. All of the conditions contained in the New Credit Agreement to be fulfilled or complied with prior to any borrowing under such agreement shall have been complied with.
B. On the Closing Date, the Initial Purchasers Purchaser shall have received the opinion, dated as of the Closing Date and addressed to the Initial PurchasersPurchaser, of AkinMcDexxxxx, GumpXxll & Emerx, Strauss, Hauex & Xeld, X.L.P., counsel xxunsel for the Company, in form and substance satisfactory to counsel for the Initial PurchasersPurchaser, substantially to the effect that:
(i) The Company is has been duly incorporated, and is validly existing and in good standing under the laws of Texas the State of Delaware and has all requisite corporate power and authority to own own, lease and operate its properties and to conduct its business as described in the Final Memorandum. The Company is duly qualified to do business as a foreign corporation and in good standing in all other jurisdictions where the ownership or leasing of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effecteach jurisdiction listed on Schedule A hereto.
(ii) The authorized capital stock of the Company has the authorized, issued and outstanding capitalization set forth in the Final Memorandum.
(iii) To the knowledge of such counsel, except as set forth in the Final Memorandum conforms to the Certificate of Incorporation of the Company; all of the outstanding shares of capital stock of the Company held by TFH have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights.
(iii) Except as set forth in the Final Memorandum, (A) no options, warrants or other rights to purchase from the Company shares of capital stock or ownership interests in the Company are outstanding, (B) no agreements or other obligations of the Company to issue, or other rights to cause the Company to convert, any obligation into, or exchange any securities for, shares of capital stock or ownership interests in the Company are outstanding and (C) no holder of securities of the Company is entitled to have such securities registered under a registration statement filed by the Company pursuant to the Registration Rights Agreement.
(iv) The Company has all requisite corporate power and authority to execute, deliver and perform each of its obligations under the Indenture, Operative Documents and to consummate the Notes, the Exchange Notes transactions contemplated hereby and the Private Exchange Notes; the thereby.
(v) The Indenture has been duly and validly authorized by the Company andauthorized, when duly executed and delivered by the Company and, (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute constitutes the valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transferconveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether brought such enforcement is considered in a proceeding in equity or at law therefor may be broughtlaw). The Indenture is in sufficient form for qualification under the TIA.
(vvi) The Notes are in the form contemplated by the Indenture. The Notes have each been duly and validly authorized authorized, executed and delivered by the Company and, when duly executed and delivered by the Company and paid for by the Initial Purchasers Purchaser in accordance with the terms of this Agreement (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Notes by the Trustee in accordance with the Indenture), will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transferconveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether brought such enforcement is considered in a proceeding in equity or at law) therefor may be brought).
(vivii) The Exchange Notes and the Private Exchange Notes have been duly and validly authorized by the CompanyCompany and, and when the Exchange Notes and the Private Exchange Notes have been duly executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of the Exchange Notes and the Private Exchange Notes by the Trustee in accordance with the Indenture and assuming the valid tender of the Notes pursuant to the exchange offer as provided for in the Registration Rights AgreementIndenture), will constitute the valid and legally binding obligations of the Company, entitled to the benefits of the Indenture, and enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transferconveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether brought such enforcement is considered in a proceeding in equity or at law) therefor may be brought).
(viiviii) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under the Registration Rights Agreement; the Registration Rights Agreement has been duly and validly authorized by the Company andauthorized, when duly executed and delivered by the Company and (assuming due authorization, execution and delivery thereof by the Initial PurchasersPurchaser), will constitute constitutes the valid and legally binding agreement of the Company, Company enforceable against the Company in accordance with its their terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transferconveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether brought such enforcement is considered in a proceeding in equity or at law) therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.
(viiiix) The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby; this This Agreement and the consummation by the Company of the transactions contemplated hereby have been duly and validly authorized by the Company. This Agreement has been duly executed and delivered by the Company.
(ixx) The Indenture, the Notes and the Registration Rights Agreement Exchange Notes conform as to legal matters in all material respects to the descriptions thereof contained in the Final Memorandum.
(xxi) To the knowledge of such counsel, based upon representations of the Company, no legal or governmental proceedings are pending or threatened to which the Company is a party or to which the property or assets of the Company is subject which, if determined adversely which would be required under the Act to the Company would result, individually be described in a registration statement or in a prospectus and are not described in the aggregate, in a Material Adverse EffectFinal Memorandum, or which seeks seek to restrain, enjoin, prevent the consummation of or otherwise challenge the issuance or sale of the Notes to be sold hereunder or the consummation of the other transactions described in the Final Memorandum under the caption "Use of Proceeds" or the "Acquisition."
(xixii) To The statements in the knowledge Final Memorandum under the caption "Certain United States Federal Tax Consequences" are accurate and present fairly the information described therein in all material respects. The statements made in the Final Memorandum under the captions "Description of such counselOther Senior Indebtedness," "Exchange Offer; Registration Rights", insofar as they describe certain provisions of the Credit Agreement, the Company is not (i) Industrial Revenue Bonds and the Registration Rights Agreement are accurate in violation of its articles of incorporation or bylaws (or similar organizational document), (ii) to the knowledge such counsel, in breach or violation of any statute, judgment, decree, order, rule or regulation applicable to it or any of its properties or assets, except for any such breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect, or (iii) in breach or default under (nor has any event occurred which, with notice or passage of time or both, would constitute a default under) or in violation of any of the terms or provisions of any Contract known to such counsel and specified in such opinion, except for any such breach, default, violation or event which would not, individually or in the aggregate, have a Material Adverse Effectall material respects.
(xiixiii) The execution, delivery and performance of this Agreement, the Indenture, the Registration Rights Agreement Operative Documents and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the issuance and sale of the Notes to the Initial PurchasersPurchaser) will not conflict with or constitute or result in a breach or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (i) the terms or provisions of any Contract identified by the Company as material, except for any such con- flict, breach, violation, default or event which would not, individually or in the aggregate, have a Material Adverse Effect, (ii) the certificate of incorporation or bylaws of the Company, or (iii) (assuming compliance with all applicable state securities or "Blue Sky" laws and assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 8 hereof) the Delaware General Corporate Law or any New York or Federal statute, judgment, decree, order, rule or regulation known to such counsel to be applicable to the Company and to transactions of the type contemplated by the Final Memorandum (but without our having made any special investigation as to other laws and provided that such opinion need not cover any laws or regulations to which the Company or its affiliates may be subject as a result of the Initial Purchaser's legal or regulatory status or the involvement of the Initial Purchaser in such transaction), except for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect.
(xiv) To the knowledge of such counsel, no consent, approval, authorization or order of any New York or federal governmental authority is required for the performance of the Operative Documents or the issuance and sale by the Company of the Notes to the Initial Purchaser or the other transactions contemplated hereby, except such as may be required under Blue Sky laws, as to which such counsel need express no opinion, and those which have previously been obtained.
(xv) The Company is not, or immediately after the sale of the Notes to be sold hereunder and the application of the proceeds from such sale (as described in the Final Memorandum under the caption "Use of Proceeds") will be, an "investment company" as such term is defined in the Investment Company Act of 1940, as amended.
(xvi) No registration under the Act of the Notes is required in connection with the sale of the Notes to the Initial Purchaser as contemplated by this Agreement and the Final Memorandum or in connection with the initial resale of the Notes by the Initial Purchaser in accordance with Section 8 of this Agreement, and prior to the commencement of the Exchange Offer (as defined in the Registration Rights Agreement) or the effectiveness of the Shelf Registration Statement (as defined in the Registration Rights Agreement), the Indenture is not required to be qualified under the TIA, in each case assuming (i) that the purchasers who buy such Notes in the initial resale thereof are qualified institutional buyers as defined in Rule 144A promulgated under the Act ("QIBs") or accredited investors as defined in Rule 501(a) (1), (2), (3) or (7) promulgated under the Act ("Accredited Investors"), (ii) the accuracy of the
Appears in 1 contract
Samples: Purchase Agreement (Toms Foods Inc)
