Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares are subject to each of the following terms and conditions: (a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million. (b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date. (c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date. (d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with. (e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that: (i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company. (ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof. (iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus. (iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole. (v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company. (vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company. (vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole. (viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering). (ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company. (x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law. (xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes. (xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company. (xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement. (f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that: (i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus. (ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement. (iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act. (iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 2 contracts
Samples: Subscription Agreement (Latin American Export Bank), Subscription Agreement (Latin American Export Bank)
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser under this Agreement to surrender for conversion Securities and to purchase the and pay for any Shares are subject to each of the following terms and conditions:
(a) On the Closing Dateshall be subject, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the CompanyPurchaser's sole discretion, to the effect that the signers accuracy of such certificate have carefully examined this Agreement and that the representations and warranties of each of the Company and BJI contained in this Agreement are true herein as of the date hereof and correct as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Closing Expiration Date, with the same effect as if made on Redemption Date and the Closing Date, respectively, to the accuracy of the statements of the officers of each of the Company and BJI made pursuant to the provisions hereof, to the performance by each of the Company and BJI of its covenants and agreements hereunder and to the following additional conditions:
(a) The Registration Statement shall have been declared effective not later than 5:00 P.M., New York City time, on the date hereof or such later time as the Purchaser and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been or shall be filed with the Commission in effect the manner and within the time period required by Rule 424(b) under the Act; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference in the Registration Statement or any post-effective amendment thereto or the Prospectus or any amendment or supplement thereto shall be in effect have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened or, to the knowledge of the Company, BJI or the Purchaser, shall be contemplated by the Commission, ; and each of the Company and BJI shall have complied with any requests by request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with).
(eb) On each of the effective date of the Registration Statement and the Closing Date there Date, the Purchaser shall have been furnished to the Purchaser the opinion received an opinion, dated such respective date, of XxxxxXxxx and Xxxx LLP, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date Company and in form and substance satisfactory to counsel for the PurchaserBJI, to the effect that:
(i) The each of the Company and BJI has been duly organized incorporated and is validly existing as a limited liability company corporation in good standing under the laws of its jurisdiction of incorporation and is duly qualified to transact business as a foreign corporation and is in good standing under the laws of the Republic Commonwealth of Panama Massachusetts;
(ii) each of the Company and is duly qualified BJI has corporate power to do own or lease its properties and conduct its business and is in good standing as described in the Republic Registration Statement and the Prospectus, and each of Panama the Company and BJI has corporate power to enter into this Agreement and to carry out all the terms and provisions hereof and thereof to be carried out by it;
(iii) each of the Company and BJI has an authorized capitalization as set forth in the Prospectus; the Conversion Shares, including the Shares, have been duly authorized and reserved for issuance by all necessary corporate action of the Company upon either conversion of the Securities or issuance to the Purchaser hereunder; the Conversion Shares, including the Shares, when issued by the Company upon either conversion of the Securities or issuance to the Purchaser hereunder, and, in the case of the Shares, paid for by the Purchaser pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the Conversion Shares, including the Shares, have been duly authorized for listing, subject to official notice of issuance, on the NYSE (provided that this opinion need not be rendered on the effective date of the Registration Statement); to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic holders of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued outstanding shares of capital stock of the Company have been duly are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in knowledge of such counsel no holders of securities of the Prospectus.Company are entitled to have such securities registered under the Registration Statement;
(iv) To the best knowledge statements set forth under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" and "Description of Waban Capital Stock" in the Prospectus, insofar as such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation statements purport to summarize certain provisions of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document capital stock of the Company or any applicable lawBJI, rule or administrative regulation are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of or the Distribution" and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included in the Republic of PanamaProspectus, or any decree known to such counsel of any court or governmental agency or governmental authority of or and under the heading "Legal Proceedings" in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their propertiesCompany's Form 10-K, except for insofar as such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have statements constitute a material adverse effect on the business, financial condition or results of operations summary of the Company and the Subsidiarieslegal matters, taken as a whole.
(viii) No consentdocuments or proceedings referred to therein, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required are correct in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.respects;
Appears in 2 contracts
Samples: Standby Purchase Agreement (Waban Inc), Standby Purchase Agreement (Waban Inc)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the representations and warranties of the Operating Partnership and the Company herein included, to the performance by the Operating Partnership and the Company of their respective obligations hereunder, and to the following terms and further conditions:
(a) On the At each Closing Date, (i) no proceedings shall be pending or, to the knowledge of the Operating Partnership or the Company, threatened against the Operating Partnership, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant or any Subsidiary before or by any Federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in any Material Adverse Effect, (ii) the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained set forth in this Agreement and in the certificate delivered pursuant to Section 6(c) 1 hereof shall be true and correct when accurate as though expressly made and on at and as of such Closing Date; and (iii) each of the Closing Date as if made on such date Operating Partnership and the Company shall have performed has complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(db) No order preventing or suspending At each Closing Date, the use of the Prospectus Purchaser shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened received a certificate executed by the Commission, president or chief executive officer and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion chief financial officer of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counselClosing Date, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying that the representations and warranties contained in Section 1 are accurate as a wholeif made at the applicable Closing Date and that the conditions precedent set forth in this Section 6 have been satisfied.
(vc) To At each Closing Date, the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute Purchaser shall have received a default, in the due performance and observance of any term, covenant or condition certificate executed by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations secretary of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor dated as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The executiondate hereof, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying as a whole.
(viii) No consentto the resolutions of the Board of Directors of the Company, approvalon behalf of the Company and as general partner of the Operating Partnership, authorization or order of or filingand other limited partnership and corporate proceedings relating to the authorization, registrationexecution, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering)hereby.
(ixd) All necessary corporate action has At the initial Closing Date, the Purchaser shall have received (i) the Amendment and the Partnership Agreement, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively, duly executed by the Company, in its capacity as general partner of the Operating Partnership, and on behalf of the existing limited partners in the Operating Partnership (via power of attorney), and the Purchaser; and (ii) a certificate or book entry registered in the name of the Purchaser representing the number of Preferred Units to be purchased by the Purchaser pursuant to Section 3 (the “Preferred Units Certificate”), duly executed by the Company, in its capacity as general partner of the Operating Partnership.
(e) At the initial Closing Date, counsel for the Purchaser shall have been duly furnished with such documents as it may reasonably require in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein included; and validly all proceedings taken by the Operating Partnership or the Company to authorize the execution, delivery and performance of this Agreement and that are necessary in connection with the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to Preferred Units shall be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Purchaser and the Subsidiaries, taken its counsel. If any condition specified in this Section 6 shall not have been fulfilled when and as a whole, or which is required to be disclosed in fulfilled, this Agreement may be terminated by the Registration Statement Purchaser by notice to the Operating Partnership and the Prospectus.
(ii) The execution Company at any time at or prior to the final Closing Date, and delivery by such termination shall be without liability of any party to any other party, except that the Company provisions concerning payment of this Agreement expenses under Section 5 hereof, the provisions concerning indemnification under Section 7 hereof, and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock provisions relating to governing law shall remain in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreementeffect.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 2 contracts
Samples: Series a Cumulative Redeemable Preferred Unit Purchase Agreement (Strategic Student & Senior Housing Trust, Inc.), Preferred Unit Purchase Agreement (Strategic Storage Trust II, Inc.)
Conditions of the Purchaser’s Obligations. The obligations of each Purchaser to consummate the Purchaser under this Agreement to purchase the Shares Closing are subject to each the satisfaction or waiver by such Purchaser on or before the Closing Date of the following terms and conditions:
(ai) On No Material Adverse Effect shall have occurred since the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.date hereof;
(bii) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on in all material respects as of the date hereof and as of the Closing Date as if made on such date with the same force and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing DateDate (other than those qualified by materiality, Material Adverse Effect or similar qualifications, which shall be true in all respects), except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of such date);
(iii) All covenants and agreements contained in this Agreement to be performed by the Company shall have been performed and complied with in all material respects;
(iv) Such Purchaser shall have received a certificate, signed by an executive officer of the same effect Company, certifying as if made on to the matters set forth in Section 8(a)(i), (ii) and (iii);
(v) As of the Closing Date, none of the following events shall have occurred and be continuing: (A) trading in the Common Stock shall have been suspended by the Commission or The NASDAQ Global Select Market; or (B) a banking moratorium shall have been declared either by U.S. federal or New York State authorities (collectively, a “Market Adverse Effect”);
(vi) The Company shall have complied with the requirements of The NASDAQ Stock Market LLC, for the listing of the Shares on The NASDAQ Global Select Market;
(vii) Each of the Purchasers shall have timely received from the Company a Purchase Notice;
(viii) The Registration Rights Agreement shall be in full force and effect;
(ix) The Company shall have approved the Tax Benefits Preservation Agreement Exemption Request attached as Exhibit A hereto in accordance with the procedures set forth in the Tax Benefits Preservation Agreement;
(x) The Note Purchase Agreement and all principal transaction documents related thereto shall have been executed by the applicable parties and the initial closing of the transactions contemplated by the Note Purchase Agreement have been completed prior to Closing;
(xi) Each of the Purchasers shall have received on and as of the Closing Date written evidence reasonably satisfactory to it of the good standing of the Company has performed all covenants in the State of Delaware, in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdiction;
(xii) Such Purchaser shall have received on the Closing Date an opinion of counsel of Xxxxxxx Procter LLP in the form attached as Exhibit B hereto;
(xiii) All fees and agreements expenses incurred on or prior to the date of Closing and satisfied all conditions contained in this Agreement required to be performed paid or satisfied reimbursed by it at or prior the Company pursuant to such Closing Date.Section 6(b)(v) hereof shall be paid concurrently with the Closing; and
(dxiv) No order preventing or suspending the use of the Prospectus event shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
occurred which constitutes a trigger event under (i) The any control share acquisition, interested stockholder, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation, By-Laws or other organizational documents of the Company has been duly organized and is validly existing as a limited liability company in good standing under or the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets incorporation or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses under any stockholder rights plan or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws similar arrangement relating to accumulations of beneficial ownership of shares of Common Stock or a change in control of the Republic Company or any of Panama in order to own or leaseits Subsidiaries, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, including without limitation, with respect to the operation of the New York AgencyTax Benefits Preservation Agreement, the Representative Offices unless such trigger event has been waived and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth will not result in the Prospectus, and all issuance of the issued any shares of capital stock of the Company have been duly and validly authorized and issuedCompany, are fully paid and non-assessable and conform to or options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, securities convertible into or exchangeable for capital stock of the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counselCompany, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule agreements or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition rights to purchase or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations otherwise acquire capital stock of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase and pay for the Shares are Series 2024 Bonds will be subject to the accuracy of the representations and warranties on the part of the Issuer herein, to the performance by the Issuer and the Company of their respective obligations hereunder and to the following additional conditions precedent:
(A) The Ordinance, the Indenture and the Lease shall have been duly authorized and executed by the respective parties thereto in the form hereto before approved by the Purchaser and shall be in full force and effect and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Purchaser.
(B) At the Closing Time, the Purchaser shall receive in form and substance satisfactory to it:
(i) the opinion of Bond Counsel approving the issuance and delivery of the Series 2024 Bonds;
(ii) the opinion of counsel for each of the following terms entities constituting the Company (acting as counsel to the Company, as the tenant under the Lease and conditionsto the Purchaser, as purchaser under this Agreement), that the Lease and this Agreement constitute valid and legal binding obligations of the Company and the Purchaser, as applicable;
(iii) a certificate or certificates, satisfactory in form and substance to Bond Counsel and the Company, of an authorized official of the Issuer dated the date of closing to the effect that, to the best of such official’s knowledge and belief:
(a) On each of the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained Issuer set forth in this Agreement Section 1 hereof is true, accurate and complete in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and all material respects as of the Closing Date as if made on such date Time, and each of the Company shall have performed all covenants and agreements and satisfied all of the conditions contained Issuer set forth in this Agreement required to be performed or satisfied by it complied with at or before prior to the Closing Time has been complied with as of such Closing Date.time; and
(cb) The Purchaser shall have received on no litigation is pending, or to such official’s knowledge threatened, to restrain or enjoin the Closing Date a certificateissuance, addressed to it and dated the Closing Dateexecution, sale or delivery of the chief executive Series 2024 Bonds or chief operating officer and contesting the chief financial officer issuance or chief accounting officer the validity of the CompanySeries 2024 Bonds, to the effect that Ordinance, the signers of such certificate have carefully examined Indenture, the Lease, or this Agreement and that none of the proceedings or authority for the issuance of the Series 2024 Bonds has been repealed, revoked or rescinded;
(iv) certified conformed copies or manually executed counterparts of the Ordinance, the Indenture and the Lease;
(v) A certificate or certificates, satisfactory in form and substance to Bond Counsel and the Purchaser, of an authorized representative of the Company dated the date of closing to the effect that:
(a) each of the representations and warranties of the Company set forth in Section 2 hereof is true, accurate and complete in all material respects as of the Closing Time, and each of the agreements of the Company set forth in this Agreement to be complied with at or prior to the Closing Time has been complied with as of such time; and
(b) insofar as the signers of such certificate or certificates are aware, after reasonable investigation, since the date of this Agreement, there has been no material adverse change in the property or financial position of the Company or results of operation of the Company; and
(c) no litigation is pending, or to the knowledge of the Company threatened, to restrain or enjoin the issuance, execution, sale or delivery of the Series 2024 Bonds or in any way contesting or affecting any authority for issuance or the validity of the Series 2024 Bonds, the Lease or this Agreement or the creation, existence, or powers of the Company to lease the Project; and
(vi) such additional certificates, opinions, or documents as the Purchaser may reasonably request to evidence the due satisfaction at or prior to such time of all conditions then to be satisfied in connection with the transactions contemplated hereby. If the conditions to the obligations of the Purchaser contained in this Agreement are true and correct as not satisfied or if made on and as the obligations of the Closing DatePurchaser shall be terminated for any reason permitted by this Agreement, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect terminate and neither the Company Purchaser nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there Issuer shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectusany further obligations hereunder.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the following terms and conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained herein included, to the performance by the Company of its obligations hereunder, and to the following further conditions:
(a) At each Closing Date, (i) no proceedings shall be pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary before or by any Federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in this Agreement are true any Material Adverse Effect, (ii) the representations and correct warranties set forth in Section 1 hereof shall be accurate as if though expressly made on at and as of the each such Closing Date, with the same effect as if made on the Closing Date, ; and (iii) the Company has performed complied in all covenants and material respects with all agreements and satisfied all conditions contained in this Agreement required on its part to be performed or satisfied by it at or prior to such Closing Date.
(db) No order preventing or suspending At the use initial Closing Date, the Purchaser shall have received the Amendment and the Operating Agreement, respectively, duly executed by the Company and on behalf of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness existing members (via power of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commissionattorney), and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied withPurchaser.
(ec) On At each Closing Date, counsel for the Closing Date there Purchaser shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing with such documents as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama it may reasonably require in order to own or lease, as evidence the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation accuracy of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property representations or assets warranties, or the fulfillment of any of the Company is subjectconditions, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults herein included; and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly all proceedings taken by the Company to authorize the execution, delivery and performance of this Agreement and that are necessary in connection with the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to Preferred Units shall be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no actionPurchaser and its counsel. If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or this Agreement may be a party or of which terminated by the business or property of the Company or either Subsidiary is or may be subject that is material Purchaser by notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party, except that the provisions concerning payment of expenses under Section 4 hereof, the provisions concerning indemnification under Section 6 hereof, and the Subsidiaries, taken as a whole, or which is required provisions relating to be disclosed governing law shall remain in the Registration Statement and the Prospectuseffect.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase and pay for the Shares are Series 2020 Bonds will be subject to the accuracy of the representations and warranties on the part of the Issuer herein, to the performance by the Issuer and the Purchaser of their respective obligations hereunder and to the following additional conditions precedent:
(A) The Ordinance, the Indenture, the Base Lease and the Lease shall have been duly authorized and executed by the respective parties thereto in the form hereto before approved by the Purchaser and shall be in full force and effect and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Purchaser.
(B) At the Closing Time, the Purchaser shall receive in form and substance satisfactory to it:
(i) the opinion of Bond Counsel approving the issuance and delivery of the Series 2020 Bonds;
(ii) the opinion of counsel for each of the following terms entities constituting the Company (acting as counsel to the Company, as the tenant under the Lease and conditionsto the Purchaser, as purchaser under this Agreement), that the Lease and this Agreement constitute valid and legal binding obligations of the Company and the Purchaser, as applicable;
(iii) a certificate or certificates, satisfactory in form and substance to Bond Counsel and the Company, of an authorized official of the Issuer dated the date of closing to the effect that, to the best of such official’s knowledge and belief:
(a) On each of the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained Issuer set forth in this Agreement Section 1 hereof is true, accurate and complete in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and all material respects as of the Closing Date as if made on such date Time, and each of the Company shall have performed all covenants and agreements and satisfied all of the conditions contained Issuer set forth in this Agreement required to be performed or satisfied by it complied with at or before prior to the Closing Time has been complied with as of such Closing Date.time; and
(cb) The Purchaser shall have received on no litigation is pending, or to such official’s knowledge threatened, to restrain or enjoin the Closing Date a certificateissuance, addressed to it and dated the Closing Dateexecution, sale or delivery of the chief executive Series 2020 Bonds or chief operating officer and contesting the chief financial officer issuance or chief accounting officer the validity of the CompanySeries 2020 Bonds, to the effect that Ordinance, the signers of such certificate have carefully examined Indenture, the Base Lease, the Lease, or this Agreement and that none of the proceedings or authority for the issuance of the Series 2020 Bonds has been repealed, revoked or rescinded;
(iv) certified conformed copies or manually executed counterparts of the Ordinance, the Indenture, the Base Lease and the Lease;
(v) A certificate or certificates, satisfactory in form and substance to Bond Counsel and the Purchaser, of an authorized representative of the Company dated the date of closing to the effect that:
(a) each of the representations and warranties of the Company set forth in Section 2 hereof is true, accurate and complete in all material respects as of the Closing Time, and each of the agreements of the Company set forth in this Agreement to be complied with at or prior to the Closing Time has been complied with as of such time; and
(b) insofar as the signers of such certificate or certificates are aware, after reasonable investigation, since the date of this Agreement, there has been no material adverse change in the property or financial position of the Company or results of operation of the Company; and
(c) no litigation is pending, or to the knowledge of the Company threatened, to restrain or enjoin the issuance, execution, sale or delivery of the Series 2020 Bonds or in any way contesting or affecting any authority for issuance or the validity of the Series 2020 Bonds, the Base Lease, the Lease or this Agreement or the creation, existence, or powers of the Company to lease the Project; and
(vi) such additional certificates, opinions, or documents as the Purchaser may reasonably request to evidence the due satisfaction at or prior to such time of all conditions then to be satisfied in connection with the transactions contemplated hereby. If the conditions to the obligations of the Purchaser contained in this Agreement are true and correct as not satisfied or if made on and as the obligations of the Closing DatePurchaser shall be terminated for any reason permitted by this Agreement, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect terminate and neither the Company Purchaser nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there Issuer shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectusany further obligations hereunder.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the representations and warranties of the Operating Partnership and the Company herein included, to the performance by the Operating Partnership and the Company of their respective obligations hereunder, and to the following terms and further conditions:
(a) On the At each Closing Date, (i) no proceedings shall be pending or, to the knowledge of the Operating Partnership or the Company, threatened against the Operating Partnership, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant or any Subsidiary before or by any Federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in any Material Adverse Effect, (ii) the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained set forth in this Agreement and in the certificate delivered pursuant to Section 6(c) 1 hereof shall be true and correct when accurate as though expressly made and on at and as of such Closing Date; and (iii) each of the Closing Date as if made on such date Operating Partnership and the Company shall have performed has complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(db) No order preventing or suspending At each Closing Date, the use of the Prospectus Purchaser shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened received a certificate executed by the Commission, president or chief executive officer and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion chief financial officer of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counselClosing Date, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying that the representations and warranties contained in Section 1 are accurate as a wholeif made at the applicable Closing Date and that the conditions precedent set forth in this Section 6 have been satisfied.
(vc) To At each Closing Date, the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute Purchaser shall have received a default, in the due performance and observance of any term, covenant or condition certificate executed by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations secretary of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor dated as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The executiondate hereof, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying as a whole.
(viii) No consentto the resolutions of the board of directors of the Company, approvalon behalf of the Company and as general partner of the Operating Partnership, authorization or order of or filingand other limited partnership and corporate proceedings relating to the authorization, registrationexecution, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering)hereby.
(ixd) All necessary corporate action has At the initial Closing Date, the Purchaser shall have received (i) the Amendment, substantially in the form attached hereto as Exhibit A-1, duly executed by the Company, in its capacity as general partner of the Operating Partnership, and the Purchaser; and (ii) a certificate or book entry registered in the name of the Purchaser representing the number of Preferred Units to be purchased by the Purchaser pursuant to Section 3 (the “Preferred Units Certificate”), duly executed by the Company, in its capacity as general partner of the Operating Partnership.
(e) At the initial Closing Date, counsel for the Purchaser shall have been duly furnished with such documents as it may reasonably require in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein included; and validly all proceedings taken by the Operating Partnership or the Company to authorize the execution, delivery and performance of this Agreement and that are necessary in connection with the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to Preferred Units shall be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Purchaser and the Subsidiaries, taken its counsel. If any condition specified in this Section 6 shall not have been fulfilled when and as a whole, or which is required to be disclosed in fulfilled, this Agreement may be terminated by the Registration Statement Purchaser by notice to the Operating Partnership and the Prospectus.
(ii) The execution Company at any time at or prior to the final Closing Date, and delivery by such termination shall be without liability of any party to any other party, except that the Company provisions concerning payment of this Agreement expenses under Section 5 hereof, the provisions concerning indemnification under Section 7 hereof, and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock provisions relating to governing law shall remain in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreementeffect.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Samples: Series a Cumulative Redeemable Preferred Unit Purchase Agreement (Strategic Storage Trust VI, Inc.)
Conditions of the Purchaser’s Obligations. The obligations obligation of the each Purchaser under this Agreement to purchase and pay for the Shares are Securities is subject to each of the following terms and conditionsconditions unless waived in writing by the relevant Purchaser:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made in all material respects (other than representations and warranties with a Material Adverse Effect qualifier, which shall be true and correct as written) on and as of the Closing Date as if made on such date and Date; the Company shall have performed complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such prior to the Closing Date.
(b) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company's knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Securities or any Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the other Basic Documents.
(c) The Purchaser Company shall have filed with the California Secretary of State the Series E Certificate of Determination in the form attached hereto as Exhibit B containing the resolutions of the Board of Directors of the Company creating the Series E Preferred Stock and setting forth the terms and conditions of the Series E Preferred Stock. A copy of each of the articles of incorporation of the Company and the Series E Certificate of Determination, certified by the State of California, shall have been delivered to the Purchasers as promptly as practicable after the Closing Date.
(d) The Purchasers and Placement Agent shall have received on certificates, dated the Closing Date a certificate, addressed to it and dated the Closing Date, of signed by the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement paragraphs 5(a) and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied withb).
(e) On or before the Closing Date there Date, the Purchasers shall have been furnished to received the Purchaser Registration Rights Agreement executed by the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date Company and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are agreement shall be in full force and effect at all times from and neither after the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the ProspectusClosing Date, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this AgreementEnforceability Exceptions.
(f) On the Closing Date there The Purchasers and Placement Agent shall have been furnished to the Purchaser the received an opinion of Xxxxxxxx Xxxxxx XX XXXGray Cary Ware & Freidenrich LLP, Xxxxxx Xxxxxx counsel for to the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property with respect xx txx xxxxxxization of the Company or either Subsidiary is or may be subject that is material to shares of the Company Series E Preferred Stock, the Conversion Shares and the SubsidiariesWarrant Shares, taken as a whole, or which is required to be disclosed and other customary matters in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except form attached hereto as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.Exhibit C.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase and pay for the Shares are Series 2023 Bonds will be subject to the accuracy of the representations and warranties on the part of the Issuer herein, to the performance by the Issuer and the Company of their respective obligations hereunder and to the following additional conditions precedent:
(A) The Ordinance, the Indenture, the Base Lease and the Lease shall have been duly authorized and executed by the respective parties thereto in the form hereto before approved by the Purchaser and shall be in full force and effect and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Purchaser.
(B) At the Closing Time, the Purchaser shall receive in form and substance satisfactory to it:
(i) the opinion of Bond Counsel approving the issuance and delivery of the Series 2023 Bonds;
(ii) the opinion of counsel for each of Bluhawk Holdings, Bluhawk Land, Bluhawk Market Place and Bluhawk Sports Properties;
(iii) a certificate or certificates, satisfactory in form and substance to Bond Counsel and the following terms Purchaser, of an authorized official of the Issuer dated the date of closing to the effect that, to the best of such official’s knowledge and conditionsbelief:
(a) On each of the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained Issuer set forth in this Agreement Section 1 hereof is true, accurate and complete in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and all material respects as of the Closing Date as if made on such date Time, and each of the Company shall have performed all covenants and agreements and satisfied all of the conditions contained Issuer set forth in this Agreement required to be performed or satisfied by it complied with at or before prior to the Closing Time has been complied with as of such Closing Date.time; and
(cb) The Purchaser shall have received on no litigation is pending, or to such official’s knowledge threatened, to restrain or enjoin the Closing Date a certificateissuance, addressed to it and dated the Closing Dateexecution, sale or delivery of the chief executive Series 2023 Bonds or chief operating officer and contesting the chief financial officer issuance or chief accounting officer the validity of the CompanySeries 2023 Bonds, to the effect that Ordinance, the signers of such certificate have carefully examined Indenture, the Base Lease, the Lease, or this Agreement and that none of the proceedings or authority for the issuance of the Series 2023 Bonds has been repealed, revoked or rescinded;
(iv) a certificate or certificates, satisfactory in form and substance to Bond Counsel and the Purchaser, of authorized officer, member or manager of the Company dated the date of closing to the effect that:
(a) each of the representations and warranties of the Company set forth in Section 2 hereof is true, accurate and complete in all material respects as of the Closing Time, and each of the agreements of the Company set forth in this Agreement to be complied with at or prior to the Closing Time has been complied with as of such time; and
(b) insofar as the signers of such certificate or certificates are aware, after reasonable investigation, since the date of this Agreement, there has been no material adverse change in the property or financial position of the Company or results of operation of the Company; and
(c) no litigation is pending, or to the knowledge of the Company threatened, to restrain or enjoin the issuance, execution, sale or delivery of the Series 2023 Bonds or in any way contesting or affecting any authority for issuance or the validity of the Series 2023 Bonds, the Lease or this Agreement or the creation, existence, or powers of the Company to lease the Project.
(v) certified conformed copies or manually executed counterparts of the Ordinance, the Indenture, the Base Lease and the Lease; and
(vi) such additional certificates, opinions, or documents as the Purchaser may reasonably request to evidence the due satisfaction at or prior to such time of all conditions then to be satisfied in connection with the transactions contemplated hereby.
(C) Subsequent to the Issuer’s acceptance of this Agreement:
(i) there shall not have occurred any change, or any development involving a prospective change in or affecting particularly the business or properties of the Company which, in the judgment of the Purchaser, materially impairs the investment quality of the Series 2023 Bonds; or
(ii) trading in securities generally on the New York Stock Exchange shall not have been suspended, minimum prices shall not have been established on such Exchange, nor a banking moratorium declared either by Federal or Kansas authorities; or
(iii) no order, decree or injunction of any court of competent jurisdiction, nor any order, ruling, regulation or administrative proceeding by any governmental body or board, shall have been issued or commenced nor shall any legislation have been enacted by the Congress, with the purpose or effect of prohibiting the issuing, offering or sale of the Series 2023 Bonds as contemplated hereby; or
(iv) the United States shall not be or become engaged in any major outbreak of armed hostilities which result in the declaration of national emergency. If the conditions to the obligations of the Purchaser contained in this Agreement are true and correct as not satisfied or if made on and as the obligations of the Closing DatePurchaser shall be terminated for any reason permitted by this Agreement, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect terminate and neither the Company Purchaser nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there Issuer shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectusany further obligations hereunder.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions of the Purchaser’s Obligations. The obligations obligation of the each Purchaser under this Agreement to purchase a Note or pay for the Shares are Securities is subject to each of the following terms and conditionsconditions unless waived in writing by the Purchaser:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made in all respects (other than representations and warranties with a Material Adverse Effect qualifier, which shall be true and correct as written) on and as of the Closing Date as if made on such date and Date; the Company shall have performed complied in all covenants and respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such prior to the Closing Date.
(b) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company's knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Securities or any Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement, the other Transaction Documents or the Disclosure Documents.
(c) The Purchaser shall have received on certificates, dated the Closing Date a certificate, addressed to it and dated signed by the Closing Date, of the chief executive or chief operating officer Chief Executive Officer and the chief financial officer or chief accounting officer Chief Financial Officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement paragraphs 5(a) and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date(b).
(d) No order preventing or suspending the use of the Prospectus Upon Conversion, Purchaser shall have been or shall be in effect and no order suspending the effectiveness received an opinion of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished Xxxxxxx Savage Xxxxxxxxx Xxxx & Xxxxxx LLP counsel to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation authorization of the New York AgencyShares and other customary matters terms, the Representative Offices and the Subsidiaries); and reasonably satisfactory to the best knowledge Purchaser. Prior to the close of such counselthis transaction, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any shall give Purchaser immediate notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation occurrence of any franchise, license, permit, judgment, decree, order, statute, rule event or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition receipt by the Company of any agreementnotice or knowledge the effect of which would be to make a representation or warranty of Company herein untrue or misleading if made on or immediately following the occurrence of such event or the receipt of such notice or knowledge. Company hereby agrees to protect, indentureindemnify, mortgageand defend Purchaser, deed of trustand Purchaser’s nominee, note or against and to hold Purchaser, and Purchaser’s nominee, harmless from any and all costs, claims, losses, attorneys’ fees, liabilities, and other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision ofexpenses that Purchaser, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) underPurchaser’s nominee, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound may incur or to which Purchaser, or Purchaser’s nominee, may be exposed as a result of Company’s breach of or the falsity of any of the property Company’s representations or assets warranties in this Agreement or as a result of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation Company’s breach of or in the Republic of Panama, failure to perform or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or observe any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or Company’s covenants in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase and pay for the Shares are Series 2023 Bonds will be subject to the accuracy of the representations and warranties on the part of the Issuer herein, to the performance by the Issuer and the Company of their respective obligations hereunder and to the following additional conditions precedent:
(A) The Ordinance, the Indenture, the Base Lease and the Lease shall have been duly authorized and executed by the respective parties thereto in the form hereto before approved by the Purchaser and shall be in full force and effect and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Purchaser.
(B) At the Closing Time, the Purchaser shall receive in form and substance satisfactory to it:
(i) the opinion of Bond Counsel approving the issuance and delivery of the Series 2023 Bonds;
(ii) the opinion of counsel for each of the following terms entities constituting the Company (acting as counsel to the Company, as the tenant under the Lease and conditionsto the Purchaser, as purchaser under this Agreement), that the Lease and this Agreement constitute valid and legal binding obligations of the Company and the Purchaser, as applicable;
(iii) a certificate or certificates, satisfactory in form and substance to Bond Counsel and the Company, of an authorized official of the Issuer dated the date of closing to the effect that, to the best of such official’s knowledge and belief:
(a) On each of the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained Issuer set forth in this Agreement Section 1 hereof is true, accurate and complete in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and all material respects as of the Closing Date as if made on such date Time, and each of the Company shall have performed all covenants and agreements and satisfied all of the conditions contained Issuer set forth in this Agreement required to be performed or satisfied by it complied with at or before prior to the Closing Time has been complied with as of such Closing Date.time; and
(cb) The Purchaser shall have received on no litigation is pending, or to such official’s knowledge threatened, to restrain or enjoin the Closing Date a certificateissuance, addressed to it and dated the Closing Dateexecution, sale or delivery of the chief executive Series 2023 Bonds or chief operating officer and contesting the chief financial officer issuance or chief accounting officer the validity of the CompanySeries 2023 Bonds, to the effect that Ordinance, the signers of such certificate have carefully examined Indenture, the Base Lease, the Lease, or this Agreement and that none of the proceedings or authority for the issuance of the Series 2023 Bonds has been repealed, revoked or rescinded;
(iv) certified conformed copies or manually executed counterparts of the Ordinance, the Indenture, the Base Lease and the Lease;
(v) A certificate or certificates, satisfactory in form and substance to Bond Counsel and the Purchaser, of an authorized representative of the Company dated the date of closing to the effect that:
(a) each of the representations and warranties of the Company set forth in Section 2 hereof is true, accurate and complete in all material respects as of the Closing Time, and each of the agreements of the Company set forth in this Agreement to be complied with at or prior to the Closing Time has been complied with as of such time; and
(b) insofar as the signers of such certificate or certificates are aware, after reasonable investigation, since the date of this Agreement, there has been no material adverse change in the property or financial position of the Company or results of operation of the Company; and
(c) no litigation is pending, or to the knowledge of the Company threatened, to restrain or enjoin the issuance, execution, sale or delivery of the Series 2023 Bonds or in any way contesting or affecting any authority for issuance or the validity of the Series 2023 Bonds, the Base Lease, the Lease or this Agreement or the creation, existence, or powers of the Company to lease the Project; and
(vi) such additional certificates, opinions, or documents as the Purchaser may reasonably request to evidence the due satisfaction at or prior to such time of all conditions then to be satisfied in connection with the transactions contemplated hereby. If the conditions to the obligations of the Purchaser contained in this Agreement are true and correct as not satisfied or if made on and as the obligations of the Closing DatePurchaser shall be terminated for any reason permitted by this Agreement, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect terminate and neither the Company Purchaser nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there Issuer shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectusany further obligations hereunder.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions of the Purchaser’s Obligations. The obligations of each Purchaser to consummate the Purchaser under this Agreement to purchase the Shares Closing are subject to each the satisfaction or waiver by such Purchaser on or before the Closing Date of the following terms and conditions:
(ai) On No Material Adverse Effect shall have occurred since the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.date hereof;
(bii) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on in all material respects as of the date hereof and as of the Closing Date as if made on such date with the same force and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing DateDate (other than those qualified by materiality, Material Adverse Effect or similar qualifications, which shall be true in all respects), except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of such date);
(iii) All covenants and agreements contained in this Agreement to be performed by the Company shall have been performed and complied with in all material respects;
(iv) Such Purchaser shall have received a certificate, signed by an executive officer of the same effect Company, certifying as if made on to the matters set forth in Section 8(a)(i), (ii) and (iii);
(v) As of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use none of the Prospectus following events shall have occurred and be continuing: (A) trading in the Common Stock shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests suspended by the Commission for additional information or The Nasdaq Global Select Market; or (to be included in the Registration Statement or the Prospectus or otherwiseB) a banking moratorium shall have been complied with.declared either by U.S. federal or New York State authorities (collectively, a "Market Adverse Effect");
(evi) On The Company shall have complied with the requirements of the Nasdaq Stock Market, Inc., for the listing of the Shares on The Nasdaq Global Select Market; and
(vii) Each of the Purchasers shall have timely received from the Company a Purchase Notice. In addition, the obligations of each Institutional Purchaser to consummate the Closing are subject to the satisfaction or waiver by the Monarch Holders Majority and the Oaktree Holder Majority on or before the Closing Date there shall have been furnished to of the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect thatfollowing conditions:
(i) The Company has been duly organized Registration Rights Agreement shall be in full force and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.effect;
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws Each of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted Institutional Purchasers shall have received on and as described of the Closing Date written evidence reasonably satisfactory to it of the good standing of the Company in the Prospectus (includingXxxxxxxx Islands, without limitation, with respect to in writing or any standard form of telecommunication from the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge appropriate governmental authorities of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.jurisdiction;
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company Specified Amendments shall have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to all parties thereto and shall be sold by the Company in full force and delivered to the Purchaser on the Closing Date are in due effect, and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority copies thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished delivered to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the each Institutional Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.; and
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date andLetter Agreement shall have been executed and delivered by all parties thereto and shall be in full force and effect, and a copy thereof shall have been delivered to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Acteach Institutional Purchaser.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser Each Purchaser's obligation under this Agreement to purchase the Shares are Section 3 hereof is subject to the fulfillment on or before the Closing of each of the following terms and conditionsconditions unless waived by each of the Purchasers:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties each of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser Purchasers shall have received on the Closing Date a certificatereasonable opinion of Akerman, addressed Senterfitt & Eidxxx, X.A., counsel to it and the Company, dated the Closing Date, of substantially in the chief executive or chief operating officer form and the chief financial officer or chief accounting officer of the Company, substantially to the effect that set forth in Exhibit C attached hereto;
(b) the signers Company shall have executed and delivered the Registration Rights Agreement, dated the Closing Date, substantially in the form of such certificate have carefully examined this Agreement and that Exhibit B attached hereto;
(c) the representations and warranties of the Company contained in this Agreement are Section 2 shall be true and correct on and as if of the Closing Date with the same effect as though made on and as of the Closing Date;
(d) the Company shall have performed all covenants, agreements and obligations contained in this Agreement, the Credit Agreement and the Term B Notes that are required to be performed or complied by it on or before the Closing Date;
(e) the Chief Executive Officer of the Company shall have delivered to the Purchasers at the Closing an Officer's Certificate certifying that the conditions specified in Sections 6.01(c), (d) and (h) have been fulfilled;
(f) all corporate and other proceedings taken or to be taken in connection with the same effect transactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to the Purchasers and the Purchasers' special counsel and the Purchasers and their special counsel shall have received all such counterpart originals or certified or other copies of such documents as if made they may reasonably request;
(g) the Purchasers, severally, shall have received the notes and warrants representing the Term B Notes and Term B Warrants in the amounts set forth opposite their names on Schedule 1; and
(h) on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect paid all reasonable out-of-pocket expenses (including the fees and no order suspending disbursements of Dewxx Xxxxxxxxxx XXP as special counsel to the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened Purchasers) incurred by the Commission, Purchasers in connection with the review and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation negotiation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a wholehereby.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Samples: Term B Convertible Note and Warrant Purchase Agreement (Viasource Communications Inc)
Conditions of the Purchaser’s Obligations. The obligations obligation of the each Purchaser under this Agreement to purchase and pay for the Shares are Securities is subject to each of the following terms and conditionsconditions unless waived in writing by each Purchaser:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made in all material respects (other than representations and warranties with a Material Adverse Effect qualifier, which shall be true and correct as written) on and as of the Closing Date as if made on such date and Date; the Company shall have performed complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such prior to the Closing Date.
(b) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company’s knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Securities or any Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement, the other Transaction Documents or the Disclosure Documents.
(c) The Purchaser Purchasers shall have received on certificates, dated the Closing Date a certificate, addressed to it and dated signed by the Closing Date, of the chief executive or chief operating officer Chief Executive Officer and the chief financial officer or chief accounting officer Chief Financial Officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement paragraphs 5(a) and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date(b).
(d) No order preventing or suspending the use of the Prospectus The Purchasers shall have been or shall be in effect and no order suspending the effectiveness received an opinion of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the CommissionXxxxxx & Xxxxxxx LLP, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished counsel to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation authorization of the New York AgencyShares, the Representative Offices Warrants and the Subsidiaries); Warrant Shares and to other customary matters in the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.form attached hereto as Exhibit C.
(iiie) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could Purchasers shall have a material adverse effect right of first refusal on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, any financing in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party the issuer of debt or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on equity securities between the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf the date of effectiveness of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this AgreementRegistration Statement.
(f) On the Closing Date there The Company shall have been furnished received the consent of the holders of the Company’s Convertible Senior Secured Fixed Rate Notes, as amended, to defer payments due on the Purchaser Notes and other matters in substantially the opinion of Xxxxxxxx Xxxxxx XX XXXform attached hereto as Exhibit D.
(g) The Company shall have delivered to Mercator Advisory Group, Xxxxxx Xxxxxx counsel LLC the share certificates for the shares of the Company’s Series E Convertible Preferred Stock issued to MMF, dated the Closing Date MMF III and in form and substance satisfactory to counsel for the Purchaser, to the effect that:Focus Fund LP.
(ih) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the The Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in respective holders of the Registration Statement and the Prospectus.
(ii) The execution and delivery by Series F Stock shall have entered into an agreement that the Company of this Agreement will not issue and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of sell additional shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this AgreementSeries F Stock.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations hereunder of the Purchaser under this Agreement to purchase shall not become effective until the Shares are subject to date on which each of the following terms and conditions:conditions is satisfied (or waived in accordance with Section 7.02):
(a) On the Closing Date, Purchaser shall have received from the Company shall receive subscription proceeds for shares a counterpart of Common Stock sold pursuant to this Agreement signed on behalf of the Rights Offering and the Subscription Agreements equal to at least $100 million.Company;
(b) The representations the Company shall have delivered (x) the certificate or certificates representing the Shares and warranties (y) the Warrant Certificate;
(c) the Company shall have filed the Registration Statement with the SEC;
(d) the Company shall have paid to the Purchaser $7,500 to cover legal expenses in connection with due diligence and the preparation, negotiation and review of the Company contained Transaction Documents;
(e) the Purchaser shall have received a satisfactory legal opinion (addressed to the Purchaser and dated the Closing Date) of Stroock & Stroock & Xxxxx LLP, counsel for the Company, reasonably satisfactory to the Purchaser, in substantially the form attached hereto as Exhibit B;
(f) the Purchaser shall have received such documents and certificates as it or its counsel may reasonably request relating to the organization, existence and good standing of the Company, the authorization of the transactions contemplated in this Agreement and the other Transaction Documents and any other legal matters relating to the Company, this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby, all in form and substance satisfactory to the certificate delivered pursuant Purchaser and its counsel;
(g) all other permits, consents, approvals, licenses, orders or authorizations of, and registrations, declarations and filings with, any Governmental Authority, if any that are required to Section 6(cbe obtained or made in connection with (i) shall be true the execution, delivery or performance of this Agreement and correct when made and on and as the other Transaction Documents by the Company or the consummation by the Company of any of the transactions contemplated hereby and thereby, and (ii) the conduct by the Company or the Purchaser of their respective businesses following the Closing Date as if made conducted on such the date and hereof shall have been duly obtained or made;
(h) the Company shall have performed and complied with all covenants and agreements and satisfied all the conditions contained in this Agreement herein required to be performed or satisfied complied with by it at the Company on or before the Closing (including the agreements set forth in Section 6.03 hereof) and shall, if so requested by the Purchaser, provide reasonable evidence of such Closing Date.compliance;
(ci) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in under this Agreement are shall be true and correct as if made on and in all material respects; the Purchaser shall have received from the Financial Officer a certificate, dated as of the Closing Date, with the same effect as if though made on and as of the Closing Date, stating that the representations and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock warranties of the Company have been duly and validly authorized and issued, under this Agreement are fully paid and non-assessable and conform to the description thereof contained true in the Prospectus.all material respects; and
(ivj) To the best knowledge of such counsel, the Company is not all corporate and other proceedings and actions taken in violation of or conflict connection with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (includingall certificates, without limitationopinions, the offeringagreements, issuance instruments and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with documents mentioned herein or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or incident to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not such transaction shall be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Purchaser and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectusits counsel.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ribozyme Pharmaceuticals Inc)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the representations and warranties of the Operating Partnership and the Company herein included, to the performance by the Operating Partnership and the Company of their respective obligations hereunder, and to the following terms and further conditions:
(a) On the At each Closing Date, (i) no proceedings shall be pending or, to the knowledge of the Operating Partnership or the Company, threatened against the Operating Partnership, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant or any Subsidiary before or by any federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in any Material Adverse Effect, (ii) the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained set forth in this Agreement and in the certificate delivered pursuant to Section 6(c) 1 hereof shall be true and correct when accurate as though expressly made and on at and as of such Closing Date; and (iii) each of the Closing Date as if made on such date Operating Partnership and the Company shall have performed has complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(db) No order preventing or suspending At each Closing Date, the use of the Prospectus Purchaser shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened received a certificate executed by the Commission, president or chief executive officer and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion chief financial officer of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counselClosing Date, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying that the representations and warranties contained in Section 1 are accurate as a wholeif made at the applicable Closing Date and that the conditions precedent set forth in this Section 7 have been satisfied.
(vc) To At each Closing Date, the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute Purchaser shall have received a default, in the due performance and observance of any term, covenant or condition certificate executed by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations secretary of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor dated as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The executiondate hereof, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying as a whole.
(viii) No consentto the resolutions of the Board of Directors of the Company, approvalon behalf of the Company and as general partner of the Operating Partnership, authorization or order of or filingand other limited partnership and corporate proceedings relating to the authorization, registrationexecution, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering)hereby.
(ixd) All necessary corporate action has At the initial Closing Date, the Purchaser shall have received (i) the Amendment and the Partnership Agreement, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively, duly executed by the Company, in its capacity as general partner of the Operating Partnership, and on behalf of the existing limited partners in the Operating Partnership (via power of attorney), and the Purchaser; and (ii) a certificate or book entry registered in the name of the Purchaser representing the number of Preferred Units to be purchased by the Purchaser pursuant to Section 3 (the "Preferred Units Certificate"), duly executed by the Company, in its capacity as general partner of the Operating Partnership.
(e) At the initial Closing Date, counsel for the Purchaser shall have been duly furnished with such documents as it may reasonably require in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein included; and validly all proceedings taken by the Operating Partnership or the Company to authorize the execution, delivery and performance of this Agreement and that are necessary in connection with the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to Preferred Units shall be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Purchaser and the Subsidiaries, taken its counsel. If any condition specified in this Section 7 shall not have been fulfilled when and as a whole, or which is required to be disclosed in fulfilled, this Agreement may be terminated by the Registration Statement Purchaser by notice to the Operating Partnership and the Prospectus.
(ii) The execution Company at any time at or prior to the final Closing Date, and delivery by such termination shall be without liability of any party to any other party, except that the Company provisions concerning payment of this Agreement expenses under Section 6 hereof, the provisions concerning indemnification under Section 8 hereof, and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock provisions relating to governing law shall remain in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreementeffect.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations hereunder of the Purchaser under this Agreement to purchase shall not become effective until the Shares are subject to date on which each of the following terms and conditions:conditions is satisfied (or waived in accordance with Section 7.02):
(a) On the Closing Date, Purchaser shall have received from the Company shall receive subscription proceeds for shares a counterpart of Common Stock sold pursuant to this Agreement signed on behalf of the Rights Offering and the Subscription Agreements equal to at least $100 million.Company;
(b) The representations the Company shall have delivered (x) the certificate or certificates representing the Shares and warranties (y) the Warrant Certificate;
(c) the Company shall have filed the Registration Statement with the SEC;
(d) the Company shall have paid to the Purchaser $7,500 to cover legal expenses in connection with due diligence and the preparation, negotiation and review of the Company contained Transaction Documents;
(e) the Purchaser shall have received a satisfactory legal opinion (addressed to the Purchaser and dated the Closing Date) of Stroock & Stroock & Lavan LLP, counsel for the Company, reasonably satisfxxxxxy to the Purchaser, in substantially the form attached hereto as Exhibit B;
(f) the Purchaser shall have received such documents and certificates as it or its counsel may reasonably request relating to the organization, existence and good standing of the Company, the authorization of the transactions contemplated in this Agreement and the other Transaction Documents and any other legal matters relating to the Company, this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby, all in form and substance satisfactory to the certificate delivered pursuant Purchaser and its counsel;
(g) all other permits, consents, approvals, licenses, orders or authorizations of, and registrations, declarations and filings with, any Governmental Authority, if any that are required to Section 6(cbe obtained or made in connection with (i) shall be true the execution, delivery or performance of this Agreement and correct when made and on and as the other Transaction Documents by the Company or the consummation by the Company of any of the transactions contemplated hereby and thereby, and (ii) the conduct by the Company or the Purchaser of their respective businesses following the Closing Date as if made conducted on such the date and hereof shall have been duly obtained or made;
(h) the Company shall have performed and complied with all covenants and agreements and satisfied all the conditions contained in this Agreement herein required to be performed or satisfied complied with by it at the Company on or before the Closing (including the agreements set forth in Section 6.03 hereof) and shall, if so requested by the Purchaser, provide reasonable evidence of such Closing Date.compliance;
(ci) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in under this Agreement are shall be true and correct as if made on and in all material respects; the Purchaser shall have received from the Financial Officer a certificate, dated as of the Closing Date, with the same effect as if though made on and as of the Closing Date, stating that the representations and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock warranties of the Company have been duly and validly authorized and issued, under this Agreement are fully paid and non-assessable and conform to the description thereof contained true in the Prospectus.all material respects; and
(ivj) To the best knowledge of such counsel, the Company is not all corporate and other proceedings and actions taken in violation of or conflict connection with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (includingall certificates, without limitationopinions, the offeringagreements, issuance instruments and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with documents mentioned herein or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or incident to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not such transaction shall be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Purchaser and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectusits counsel.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ribozyme Pharmaceuticals Inc)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the representations and warranties of the Operating Partnership and the Company herein included, to the performance by the Operating Partnership and the Company of their respective obligations hereunder, and to the following terms and further conditions:
(a) On the At each Closing Date, (1) no proceedings shall be pending or, to the knowledge of the Operating Partnership or the Company, threatened against the Operating Partnership, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant or any Subsidiary before or by any Federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in any Material Adverse Effect, (2) the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained set forth in this Agreement and in the certificate delivered pursuant to Section 6(c) 1 hereof shall be true and correct when accurate as though expressly made and on at and as of such Closing Date; and (3) each of the Closing Date as if made on such date Operating Partnership and the Company shall have performed has complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(db) No order preventing or suspending At each Closing Date, the use of the Prospectus Purchaser shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened received a certificate executed by the Commission, president or chief executive officer and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion chief financial officer of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counselClosing Date, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying that the representations and warranties contained in Section 1 are accurate as a wholeif made at the applicable Closing Date and that the conditions precedent set forth in this Section 6 have been satisfied.
(vc) To At each Closing Date, the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute Purchaser shall have received a default, in the due performance and observance of any term, covenant or condition certificate executed by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations secretary of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor dated as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The executiondate hereof, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying as a whole.
(viii) No consentto the resolutions of the Board of Directors of the Company, approvalon behalf of the Company and as general partner of the Operating Partnership, authorization or order of or filingand other limited partnership and corporate proceedings relating to the authorization, registrationexecution, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering)hereby.
(ixi) All necessary corporate action has At the initial Closing Date, the Purchaser shall have received (i) the Amendment and the Partnership Agreement, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively, duly executed by the Company, in its capacity as general partner of the Operating Partnership, and on behalf of the existing limited partners in the Operating Partnership (via power of attorney), and the Purchaser; and (ii) a certificate or book entry registered in the name of the Purchaser representing the number of Preferred Units to be purchased by the Purchaser pursuant to Section 3 (the “Preferred Units Certificate”), duly executed by the Company, in its capacity as general partner of the Operating Partnership.
(d) At the initial Closing Date, counsel for the Purchaser shall have been duly furnished with such documents as it may reasonably require in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein included; and validly all proceedings taken by the Operating Partnership or the Company to authorize the execution, delivery and performance of this Agreement and that are necessary in connection with the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to Preferred Units shall be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Purchaser and the Subsidiaries, taken its counsel. If any condition specified in this Section 6 shall not have been fulfilled when and as a whole, or which is required to be disclosed in fulfilled, this Agreement may be terminated by the Registration Statement Purchaser by notice to the Operating Partnership and the Prospectus.
(ii) The execution Company at any time at or prior to the final Closing Date, and delivery by such termination shall be without liability of any party to any other party, except that the Company provisions concerning payment of this Agreement expenses under Section 5 hereof, the provisions concerning indemnification under Section 7 hereof, and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock provisions relating to governing law shall remain in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreementeffect.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Samples: Preferred Unit Purchase Agreement (Strategic Storage Growth Trust, Inc.)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the representations and warranties of the Operating Partnership and the Company herein included, to the performance by the Operating Partnership and the Company of their respective obligations hereunder, and to the following terms and further conditions:
(a) On At the Closing DateTime, the Company maximum amount of Indebtedness plus the Investment shall receive subscription proceeds for shares be no greater than seventy-four and one half of Common Stock sold pursuant one percent (74.5%) of the appraised value of the Portfolio based upon a third party independent appraisal of the Portfolio in accordance with Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”) standards and acceptable to the Rights Offering and the Subscription Agreements equal to at least $100 millionPurchaser.
(b) The At the Closing Time, there shall be a minimum Debt Yield (as such term is defined in the Amendment) of ten percent (10%).
(c) At the Closing Time, (1) there shall not have been, since the date hereof, any change from that set forth in the SEC Filings that would reasonably be expected to result in a Material Adverse Effect, (2) no proceedings shall be pending or, to the knowledge of the Operating Partnership or the Company, threatened against the Operating Partnership, the Company or any Subsidiary before or by any Federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in any Material Adverse Effect, (3) the representations and warranties of the Company contained set forth in this Agreement and in the certificate delivered pursuant to Section 6(c) 1 hereof shall be true and correct when accurate as though expressly made and on at and as of such Closing Time; and (4) each of the Closing Date as if made on such date Operating Partnership and the Company shall have performed has complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it at or before prior to such Closing DateTime.
(cd) The At the Closing Time, the Purchaser shall have received on a certificate executed by the Closing Date a certificate, addressed to it and dated the Closing Date, of the president or chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to dated as of the effect that date hereof, on behalf of the signers Company and as general partner of such certificate have carefully examined this Agreement and the Operating Partnership, certifying that the representations and warranties of the Company contained in this Agreement Section 1 are true and correct accurate as if made on and as of at the Closing Date, with Time and that the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained precedent set forth in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall Section 7 have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied withsatisfied.
(e) On At the Closing Date there Time, the Purchaser shall have been furnished to received a certificate executed by the Purchaser the opinion secretary of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama anddate hereof, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying as a whole.
(v) To to the best knowledge resolutions of such counsel, no default exists, and no event has occurred which with notice or lapse the Board of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations Directors of the Company.
(vi) The Shares to be issued and sold by , on behalf of the Company and as general partner of the Operating Partnership, and other limited partnership and corporate proceedings relating to the Purchaser hereunder have been duly authorization, execution and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby thereby.
(includingf) At the Closing Time, the Purchaser shall have received the favorable opinion, dated as of the date hereof, of Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, P.C., counsel for the Operating Partnership and the Company, in form and substance satisfactory to the Purchaser and covering matters such as, without limitation, good standing, due authorization, execution and delivery, enforceability and non-contravention of each of the offeringTransaction Documents, issuance the 1940 Act, REIT qualification and sale other customary matters.
(g) The following documents, each dated as of the Closing Date, shall have been duly executed and delivered at the Closing Time:
(i) the Amendment and the Second Restated Partnership Agreement, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively, duly executed by the Company Company, in its capacity as general partner of shares the Operating Partnership, and on behalf of Common Stock the existing limited partners in the Rights OfferingOperating Partnership (via power of attorney), and the Purchaser;
(ii) will not conflict with or result the Escrow Agreement, substantially in the breach of any term or provision ofform attached hereto as Exhibit B, or constitute a default duly executed by the Operating Partnership, the Company, the Advisor, the Purchaser and the Escrow Agent;
(or an event which with notice or lapse of time or both would constitute a defaultiii) underthe Articles Supplementary, or require any consent or waiver under, or result substantially in the creation or imposition of any lienform attached hereto as Exhibit C, charge, claim, encumbrance or security interest on any properties or assets duly executed by the Company;
(iv) each of the Company Subordination Agreements, substantially in the forms attached hereto as Exhibits D-1 and D-2, respectively, duly executed by the Operating Partnership, the Property Manager, the Company, the Advisor and the Purchaser, as the case may be;
(v) the Investor Rights Agreement, substantially in the form attached hereto as Exhibit E, duly executed by the Company, the Operating Partnership, the Advisor and the Purchaser;
(vi) a certificate registered in the name of the Purchaser representing the number of Preferred Units to be purchased by the Purchaser pursuant to Section 4, substantially in the form attached hereto as Exhibit F (the “Preferred Units Certificate”), duly executed by the Company, in its capacity as general partner of the Operating Partnership; and
(vii) ten certificates registered in the name of the Purchaser, each representing 10% of the number of Series A Preferred Shares issuable to the Purchaser following (a) the occurrence of an Optional Repurchase Event (as such term is defined in the Amendment), (b) the election from time to time of the Purchaser to exchange Preferred Units, in whole or in part, for Series A Preferred Shares pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property Amendment and (c) receipt by the Escrow Agent of instructions from the Purchaser to file the Articles Supplementary with the SDAT and to deliver one or assets more of such certificates to the Purchaser, pursuant to the terms of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Investor Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offeringEscrow Agreement, issuance and sale by the Company of shares of Common Stock such certificates being substantially in the Rights Offeringform attached hereto as Exhibit G (collectively, the “Series A Preferred Shares Certificates”).
(ix) All necessary corporate action has been , in each case duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(xh) The certificates for At the Shares Closing Time, the Purchaser shall have received confirmation to be sold by its reasonable satisfaction that the Operating Partnership and the Company and have delivered to the Purchaser on Escrow Agent all documents required pursuant to the Closing Date Escrow Agreement, including the Articles Supplementary, the Preferred Units Certificate, the Series A Preferred Shares Certificates and the Company’s amended and restated bylaws, substantially in the form of Exhibit H hereto, which amended and restated bylaws are in due and proper form under Panamanian lawto become effective upon release from escrow, if applicable.
(xii) No stamp At or other issuance or transfer taxes or duties prior to the Closing Time, (i) GCC shall have assigned the Columbia Portfolio Purchase Agreement to the Operating Partnership and no capital gains, income, withholding or other taxes are payable certain Subsidiaries and (ii) the acquisition by or on behalf the Operating Partnership and such Subsidiaries of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxesColumbia Portfolio shall have been consummated.
(xiij) To The Company or the best knowledge of such counselOperating Partnership shall have sent to the Purchaser, there is no actionor the Purchaser shall have received, suiton or prior to the Closing Time, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property each of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished following documents, in form satisfactory to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXXand its counsel, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect thattheir reasonable discretion:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property appraisals of the Company or either Subsidiary is or may be subject Portfolio prepared by an independent appraiser and in accordance with FIRREA standards (provided that is material the Purchaser will work in good faith to accept existing appraisals in the Company Operating Partnership’s and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.Company’s possession),
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offeringcapital expenditure budget(s), issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined engineering report(s) (provided that the Purchaser will work in good faith to accept existing engineering reports in the Investment Company Act.
(iv) The Registration Statement was declared effective under Operating Partnership’s and the Securities Act on the Effective Date and, to such counselCompany’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.possession),
Appears in 1 contract
Samples: Preferred Unit Purchase Agreement (Griffin Capital Essential Asset REIT, Inc.)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to the accuracy, when made and 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:
(a) On All corporate proceedings and other legal matters incident to the Closing Dateauthorization, form and validity of this Agreement and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Purchaser, and the Company shall receive subscription proceeds for shares of Common Stock sold pursuant have furnished to the Rights Offering such counsel all documents and the Subscription Agreements equal information that they may reasonably request to at least $100 millionenable them to pass upon such matters.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and Xxxxxxx, outside Mauritius counsel for the Company shall have performed all covenants furnished to the Purchaser its written opinion, as counsel to the Company, addressed to the Purchaser and agreements and satisfied all dated the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date, in form and substance reasonably satisfactory to the Purchaser, substantially in the form attached hereto as Exhibit A-1.
(c) The Purchaser Company shall have received on furnished to the Closing Date Purchaser a certificate, addressed to it and dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer as to such matters as the chief executive or chief operating officer Purchaser may reasonably request, including, without limitation, a statement:
(i) That the representations, warranties and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties agreements of the Company contained in this Agreement Section 1 are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed complied with all covenants and its agreements contained herein and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or prior to such the Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.;
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, That no stop order suspending the effectiveness of the Registration Statement has been issued issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened;
(iii) That they have examined the Registration Statement and the Preliminary Prospectus, and, in their opinion, except for the omission of pricing information related to the IPO, (A) (1) the Registration Statement, as of the date hereof, and (2) the Preliminary Prospectus, as of the date hereof and on the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the date hereof, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement; and
(iv) To the effect of Section 8(d) (provided that no representation with respect to the judgment of the Purchaser need be made).
(i) Neither the Company nor any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included in the Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or (ii) since such date, and except as set out or contemplated in the Preliminary Prospectus, there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Company and its subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the judgment of the Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the delivery of the Shares being delivered on the Closing Date on the terms and in the manner contemplated in this Agreement.
(e) The New York Stock Exchange shall have approved the Shares for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(f) The IPO shall have been consummated and Equity Shares with a combined value of at least $120 million but no greater than $200 million shall have been sold pursuant to this Agreement and in the IPO, exclusive of any Equity Shares sold pursuant to the underwriter’s over-allotment option.
(g) The Amended and Restated Constitution of Azure Power Global Limited filed as Exhibit 3.2 to the Registration Statement shall have become effective.
(h) The Company shall have delivered an executed counterpart of the Registration Rights Agreement in the form attached hereto as Exhibit A-2. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are pending before in form and substance reasonably satisfactory to counsel for the Commission under the Securities ActPurchaser.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase and pay for the Shares Notes are subject to each the absence from any certificates, opinions, written statements or letters furnished to the Purchaser pursuant to this Section 6 of any misstatement or omission and to the following terms and conditions:
(a) On additional conditions unless waived in writing by the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 millionPurchaser.
(bA) The Purchaser shall have received an opinion in form and substance reasonably satisfactory to the Purchaser, dated the date hereof, of Sonnenschein Nath & Rosenthal LLP, United States and Sxxxxxxxxx xxxxxxx to xxx Xxxxany, and Meitar, Liquornik, Geva & Leshem Brandwein, Law Offices, Israeli counsel to the Company, xxxxxing the matters set forth on Exhibit B hereto.
(B) The Purchaser shall have received an opinion in form and substance reasonably satisfactory to the Purchaser, dated the date hereof, of Dr. Mark Friedman, intellectual property counsel to the Compxxx, xxxxxxxx the matters set forth on Exhibit C hereto.
(C) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date hereof, and the Company shall have performed complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such Closing Dateprior to the date hereof.
(cD) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by this Agreement or any of the other Offering Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued; and there shall not have been any legal action, statute, order, decree or other administrative proceeding enacted, instituted or overtly threatened against the Company or against the Purchaser relating to the issuance of the Securities or the Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the Offering Memorandum or the other Offering Documents.
(E) Subsequent to the date of the consummation of the Rule 144A Offering (the "144A Closing Date") and since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the 144A Closing Date), there shall not have occurred (i) any change, or any development involving a prospective change in, or affecting the business, condition (financial or other), properties or results of operations of, the Company or any Subsidiary not disclosed in or contemplated by the Offering Memorandum that is, in the judgment of the Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the Offering on the terms and in the manner contemplated hereby, or (ii) any event or development relating to or involving the Company or any Subsidiary or any of their respective officers or directors that makes any statement of a material fact made in the Offering Memorandum untrue or that, in the opinion of the Company and its counsel or the Purchaser and its counsel, requires the making of any addition to or change in the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein not misleading.
(F) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form signed by the President and substance satisfactory to counsel for the PurchaserChief Executive Officer of the Company, to the effect that:
(i) The All of the representations and warranties of the Company has set forth in this Agreement are true and correct 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 organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama andperformed, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character satisfied or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Companycomplied with.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company Notes pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby by this Agreement have not been enjoined (temporarily or permanently) and thereby 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 Purchaser's activities in connection therewith or in connection with any other transactions contemplated by this Agreement or the other Offering Documents.
(including without limitation iii) Subsequent to the offering144A Closing Date and since the date of the most recent financial statements in the Offering Memorandum (exclusive of any amendment or supplement thereto after the 144A Closing Date), issuance and sale there has not occurred (1) any change, or any development involving a prospective change, in or affecting the business, condition (financial or other), properties or results of operations of the Company or any Subsidiary, not contemplated by the Offering Memorandum, or (2) any event or development relating to or involving the Company or any Subsidiary or any of shares their respective officers or directors that makes any statement of Common Stock a material fact made in the Rights OfferingOffering Memorandum untrue or that requires the making of any addition to or change in the Offering Memorandum in order to state a material fact necessary in order to make the statements made therein not misleading.
(iv) As of the Closing Date and after giving effect to the consummation of the transactions contemplated hereby, there shall exist no Default or Event of Default (as defined in the Indenture).
(ixG) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale Each of the Shares. This Agreement has Offering Documents and each other agreement or instrument executed in connection with the transactions contemplated thereby shall be satisfactory in form and substance to the Purchaser and shall have been duly and validly executed and delivered by all the Company.
(x) The certificates for respective parties thereto and shall be in full force and effect, and there shall have been no amendments, alterations, modifications or waivers of any provision thereof since the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law date of this Agreement.
(fH) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Notes and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement, the other Offering Documents and all documents and papers relating thereto shall be satisfactory to the Purchaser and counsel to the Purchaser. The Purchaser and counsel to the 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.
(iiiI) The Notes shall have been approved for trading on PORTAL.
(J) The Purchaser shall have received the Registration Rights Agreement executed by the Company, and such agreement shall be in full force and effect.
(K) The Company is not an “investment company” shall have furnished or a company “controlled” by an “investment company” caused to be furnished to the Purchaser such further certificates and documents as defined in the Investment Company ActPurchaser shall have reasonably requested.
(ivL) The Registration Statement was declared effective under the Securities Act on the Effective Date andPurchaser shall have received counterparts, to such counsel’s knowledgeconformed as executed, no stop order suspending the effectiveness of the Registration Statement has Indenture and the Notes shall have been issued duly executed and no proceedings for that purpose delivered by the Company and duly authenticated by the Trustee. All such opinions, certificates, letters, schedules, documents or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are pending before satisfactory in all material respects to the Commission under Purchaser and counsel to the Securities ActPurchaser. The Company shall furnish to the Purchaser such conformed copies of such opinions, certificates, letters, schedules, documents and instruments in such quantities as the Purchaser shall reasonably request.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of each Purchaser to consummate the Purchaser under this Agreement to purchase the Shares Closing are subject to each the satisfaction or waiver by such Purchaser on or before the Closing Date of the following terms and conditions:
(ai) On No Material Adverse Effect shall have occurred since the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.date hereof;
(bii) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on in all material respects as of the date hereof and as of the Closing Date as if made on such date with the same force and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing DateDate (other than those qualified by materiality, Material Adverse Effect or similar qualifications, which shall be true in all respects), except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of such date);
(iii) All covenants and agreements contained in this Agreement to be performed by the Company shall have been performed and complied with in all material respects;
(iv) Such Purchaser shall have received a certificate, signed by an executive officer of the same effect Company, certifying as if made on to the matters set forth in Section 8(a)(i), (ii) and (iii);
(v) As of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use none of the Prospectus following events shall have occurred and be continuing: (A) trading in the Common Stock shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests suspended by the Commission for additional information or The Nasdaq Global Select Market; or (to be included in the Registration Statement or the Prospectus or otherwiseB) a banking moratorium shall have been complied with.declared either by U.S. federal or New York State authorities (collectively, a “Market Adverse Effect”);
(evi) On The Company shall have complied with the requirements of the Nasdaq Stock Market, Inc., for the listing of the Shares on The Nasdaq Global Select Market; and
(vii) Each of the Purchasers shall have timely received from the Company a Purchase Notice. In addition, the obligations of each Institutional Purchaser to consummate the Closing are subject to the satisfaction or waiver by the Monarch Holders Majority and the Oaktree Holder Majority on or before the Closing Date there shall have been furnished to of the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect thatfollowing conditions:
(i) The Company has been duly organized Registration Rights Agreement shall be in full force and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.effect;
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws Each of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted Institutional Purchasers shall have received on and as described of the Closing Date written evidence reasonably satisfactory to it of the good standing of the Company in the Prospectus (includingXxxxxxxx Islands, without limitation, with respect to in writing or any standard form of telecommunication from the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge appropriate governmental authorities of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.jurisdiction;
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company Specified Amendments shall have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to all parties thereto and shall be sold by the Company in full force and delivered to the Purchaser on the Closing Date are in due effect, and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority copies thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished delivered to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the each Institutional Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.; and
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date andLetter Agreement shall have been executed and delivered by all parties thereto and shall be in full force and effect, and a copy thereof shall have been delivered to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Acteach Institutional Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Monarch Alternative Capital LP)
Conditions of the Purchaser’s Obligations. The obligations obligation of the Purchaser to purchase the Standby Shares is subject to the accuracy, on the date of this Agreement and on the Delivery Date, of the representations of the Company in this Agreement, to performance by the Company of its obligations under this Agreement to purchase the Shares are subject and to each of the following terms and additional conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 millionThe Registration Statement must have become effective.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall may be in effect and no proceedings for such purpose shall may be pending before or threatened by the Commission, and any requests by the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall must have been complied withwith to the reasonable satisfaction of the Purchaser.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iiic) The Company’s capitalization is as set forth in the Prospectus, Executone and all certain affiliates of the issued shares Purchaser shall have entered into a Share Exchange Agreement, dated as of capital stock of even date herewith (the Company have been duly "Share Exchange Agreement"), all representations and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations warranties of the Company and Executone contained in the SubsidiariesShare Exchange Agreement shall be true and correct in all material respects as of the date hereof and Executone and Unistar shall have performed all obligations and complied with all agreements, taken undertakings, covenants and conditions required under the Share Exchange Agreement as a wholeof the date hereof.
(vd) To The Company and Executone shall have entered into the best knowledge Reorganization Agreement, as of such counsel, no default existseven date herewith (the "Reorganization Agreement"), and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and Executone shall have performed all obligations and complied with all agreements, undertakings, covenants and conditions required under the consummation Reorganization Agreement as of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a wholedate hereof.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each of the following terms and conditions:
(a) On Subsequent to the Closing Datedate of this Agreement, there shall not have occurred any material adverse change, or any development involving a prospective change, in or affecting the business, properties, results of operations or financial condition of the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to or the Rights Offering and Subsidiaries, taken as a whole, that is not described in or contemplated by the Subscription Agreements equal to at least $100 millionProspectus.
(b) The You shall have received on the Closing Date, an opinion of Skadden, Arps, Slate, Meagxxx & Xlom XXX and Piper & Marbury L.L.P., dated the Closing Date, addressed to you, to the effect set forth in Exhibit A and Exhibit B, respectively, hereto.
(c) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission at or prior to the Closing Date and all the representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made on and as of the date hereof and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus you shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Companyreceived a certificate, dated the Closing Date and in form and substance satisfactory signed by the Chairman, President or Chief Financial Officer of the Company (or such other officer as is acceptable to counsel for the Purchaseryou), to the effect that:set forth in this Section 6(c) and in Section 6(d) hereof.
(id) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, shall not have failed at or prior to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character Closing Date to have performed or location complied with any of its assets agreements herein contained and required to be performed or properties (owned, leased complied with by it hereunder at or licensed) or prior to the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the CompanyClosing Date.
(iie) The Company has all necessary corporate power and authority and ownsShares shall have been listed, possesses or has obtained all governmental licensessubject to notice of issuance, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of on the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereofStock Exchange.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Samples: Purchase Agreement (Apartment Investment & Management Co)
Conditions of the Purchaser’s Obligations. The obligations obligation of the Purchaser under this Agreement to purchase and pay for the Shares are Securities as provided herein on the Closing Date shall be subject to each the satisfaction or waiver of the following terms and conditionsconditions on or prior to the Closing Date:
(a) On There shall have been no material breach by Holdings in the Closing Dateperformance of any of its covenants, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant agreements or obligations herein to be performed at or prior to the Rights Offering and the Subscription Agreements equal to at least $100 millionClosing.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) 2 hereof shall be true and correct when made and on and accurate in all material respects as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, Currently with the same effect as if made transactions contemplated hereby to occur on the Closing Date, the Transaction Agreements shall have become effective on terms and conditions substantially consistent with the documentation previously furnished to the Purchaser subject to such modifications as may be consented to by the Purchaser, which consent shall not be unreasonably withheld, and the Company has performed all covenants and agreements and satisfied all conditions contained Transactions contemplated in this Agreement required the Offering Memorandum to be performed or satisfied by it at consummated on or prior to such the Closing DateDate shall have been consummated.
(d) No order preventing or suspending On the use Closing Date the Purchaser shall have received the favorable opinion of J. Xxxxxxx Xxxxxxx, General Counsel of the Prospectus shall have been or shall be in effect and no order suspending Company, dated as of such Closing Date, the effectiveness form of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.which is attached as Exhibit D.
(e) On the Closing Date there the Purchaser shall have been furnished to received the Purchaser the favorable opinion of XxxxxXxxxxx, Xxxxxxx Xxxx & XxxxxxxXxxxxxxx LLP, Panamanian special counsel for the CompanyHoldings, dated as of such Closing Date, the form of which is attached as Exhibit E.
(f) On the Closing Date and in form and substance satisfactory to counsel for the PurchaserPurchaser shall have received a written certificate executed by the Chief Executive Officer of Holdings, dated as of the Closing Date, to the effect that:
(i) The Company has been duly organized for the period from and is validly existing as a limited liability company in good standing under after the laws date of the Republic of Panama this Purchase Agreement and is duly qualified to do business and is in good standing in the Republic of Panama and, prior to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding Closing Date there has been instituted by not occurred any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.Material Adverse Change;
(ii) The Company has the representations, warranties and covenants of Holdings set forth in Section 2 of this Purchase Agreement are true and correct in all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under material respects with the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full same force and effect as though expressly made on and neither as of the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.Closing Date; and
(iii) The Company’s capitalization is as set forth Holdings has complied in all material respects with all the Prospectus, agreements and satisfied all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform conditions on its part to be performed or satisfied hereunder at or prior to the description thereof contained in the ProspectusClosing Date.
(ivg) To On the best knowledge of such counselClosing Date, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither Purchaser shall have received the Company nor either Subsidiary is in violation of any franchiseWarrant Agreement, licenseduly authorized, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the CompanyHoldings, substantially in form set forth in Exhibits C hereto.
(xh) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there Holdings shall have been furnished to received proceeds from the Purchaser the opinion sale of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and its common equity in form and substance satisfactory to counsel for the Purchaser, to the effect that:an amount not less than $210.0 million.
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Holdings shall have paid all fees and the Subsidiaries, taken as a whole, or which is expenses required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation paid as of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock Closing Date in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection accordance with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this AgreementSection 6 hereof.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the following terms and conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true herein included, to the performance by the Company of its obligations hereunder, and correct as if made on and as of to the following further conditions:
(a) At the Closing Date, with (i) no proceedings shall be pending or, to the same effect knowledge of the Company, threatened against the Company or any Subsidiary before or by any Federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in any Material Adverse Effect, (ii) the representations and warranties set forth in Section 1 hereof shall be accurate as if though expressly made on the at and as of such Closing Date, ; and (iii) the Company has performed complied in all covenants and material respects with all agreements and satisfied all conditions contained in this Agreement required on its part to be performed or satisfied by it at or prior to such Closing Date.
(db) No order preventing or suspending At the use of Closing Date, the Prospectus Purchaser shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxx, Xxxxxxx & Xxxxxxx, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
received (i) The the Amendment and the Operating Agreement, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively, duly executed by the Company has been duly organized and is validly existing as a limited liability company in good standing under the laws on behalf of the Republic existing members (via power of Panama attorney), and is duly qualified to do business the Purchaser; and is in good standing (ii) a certificate or book entry registered in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination name of the corporate existence Purchaser representing the number of Preferred Units to be purchased by the Purchaser pursuant to Section 3 (the “Preferred Units Certificate”), duly executed by the Company.
(iic) The Company has all necessary corporate power and authority and ownsAt the Closing Date, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under counsel for the laws of the Republic of Panama Purchaser shall have been furnished with such documents as it may reasonably require in order to own or lease, as evidence the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation accuracy of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property representations or assets warranties, or the fulfillment of any of the Company is subjectconditions, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults herein included; and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly all proceedings taken by the Company to authorize the execution, delivery and performance of this Agreement and that are necessary in connection with the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to Preferred Units shall be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of Xxxxxxxx Xxxxxx XX XXX, Xxxxxx Xxxxxx counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no actionPurchaser and its counsel. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or this Agreement may be a party or of which terminated by the business or property of the Company or either Subsidiary is or may be subject that is material Purchaser by notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party, except that the provisions concerning payment of expenses under Section 5 hereof, the provisions concerning indemnification under Section 7 hereof, and the Subsidiaries, taken as a whole, or which is required provisions relating to be disclosed governing law shall remain in the Registration Statement and the Prospectuseffect.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Samples: Series B Cumulative Redeemable Preferred Unit Purchase Agreement (Shepherd's Finance, LLC)
