Conditions Precedent to Obligations of the Initial Purchaser. The obligation of the Initial Purchaser to purchase the Securities to be purchased by it hereunder is subject to the satisfaction of the following conditions: (a) The Initial Purchaser shall have received, at the Time of Purchase, a signed opinion of Bakex & Xostxxxxx XXX, as counsel to Holding and the Issuer, substantially in the form of EXHIBIT 1 hereto, dated the Time of Purchase and addressed to the Initial Purchaser and satisfactory to counsel for the Initial Purchaser. (b) The Initial Purchaser shall have received, at the Time of Purchase, a signed opinion of Cahixx Xxxxxx & Xeinxxx, xxunsel to the Initial Purchaser, substantially in the form of EXHIBIT 2 hereto, dated the Time of Pur- chase and addressed to the Initial Purchaser and satisfactory to the Initial Purchaser. In rendering such opinions in accordance with Sections 4.1(a) and (b), each such counsel may rely as to factual matters upon certificates or other documents furnished by officers and directors of the Glasstech Entities and representations of the Initial Purchaser and by government officials, and upon such other documents as such counsel deem appropriate as a basis for their opinion. Each such counsel may specify the jurisdictions in which it is admitted to practice and that it is not admitted to practice in any other jurisdiction or an expert in the law of any other jurisdiction. To the extent such opinion concerns the laws of any other such jurisdiction such counsel may rely upon the opinion of counsel (satisfactory to the Initial Purchaser) admitted to practice in such jurisdiction. Any opinion relied upon by such counsel as aforesaid shall be delivered to the Initial Purchaser together with the opinion of such counsel, which opinion shall state that such counsel believes that their and the Initial Purchaser's reliance thereon is justified. (c) The Initial Purchaser shall have received from Ernst & Young a comfort letter or letters dated the date hereof and the Time of Purchase in form and substance reasonably satisfactory to counsel to the Initial Purchaser. (d) The representations and warranties made by Holding and the Issuer herein shall be true and correct in all material respects (except for changes expressly provided for in this Agreement) on and as of the Time of Purchase with the same effect as though such representations and warranties had been made on and as of the Time of Purchase, each of the Glasstech Entities shall have complied in all material respects with all agreements as set forth in or contemplated hereunder and in the other Basic Documents required to be performed by it at or prior to the Time of Purchase. (f) At the Time of Purchase and after giving effect to the consummation of the transactions contemplated by this Agreement and the other Basic Documents, there shall exist no Default or Event of Default. (g) The purchase of and payment for the Securities by the Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation (including, without limitation, Regulation G, T, U or X of the Board of Governors of the Federal Reserve System). (h) At the Time of Purchase, the Initial Purchaser shall have received a certificate, dated the Time of Purchase, from the appropriate officer of each of the Glasstech Entities stating that the conditions specified in Sections 4.1(d), (e), (f) and (l) have been satisfied or duly waived at the Time of Purchase. (i) Each of the Basic Documents shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect. (j) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them. (k) The Issuer shall have furnished to the Initial Purchaser the form of Revolving Credit Facility and a true and correct executed copy of the Merger Agreement including all schedules and exhibits thereto. (l) The sale of the Securities hereunder shall not have been enjoined (temporarily or permanently) at the Time of Purchase. (m) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (A) it is downgrading its rating assigned to any debt securities of Glasstech, or (B) it is reviewing its rating assigned to any debt securities of Glasstech with a view to possible downgrading, or with negative implications, or direction not determined. (n) At the Time of Purchase, each Glasstech Entity shall have, to the extent it is a party thereto, complied in all material respects with all agreements and covenants in the Transaction Documents and performed all conditions specified therein (other than agreements or covenants which have been waived but only if such waivers are not required to be set forth in the Final Memorandum) to be complied with or performed at or prior to the Time of Purchase, and each of the Transaction Documents shall be in full force and effect. (o) At the Time of Purchase, the Initial Purchaser shall have received copies of all certificates, documents and opinions, reasonably requested by the Initial Purchaser, delivered by any of the Glasstech Entities or any of their counsels and such other certificates, documents and opinions reasonably obtainable by the Glasstech Entities under the Transaction Documents in connection with any of the Transactions, together with letters addressed to the Initial Purchaser, stating that the Initial Purchaser may rely on such certificates and opinions as if they had been addressed to the Initial Purchaser. (p) Each of the Transactions (other than the Offering) shall have been consummated, or shall be consummated simultaneously with the Offering, on the terms and conditions set forth in the Transaction Documents in the forms previously delivered to the Initial Purchaser and to which it shall not have reasonably objected. (q) At the Effective Time, a certificate of merger with respect to the Merger shall have been filed with the Secretary of State of the State of Delaware. (r) At the Time of Purchase, the Surviving Company shall have executed and delivered to the Initial Purchaser an agreement, in such form as is satisfactory to the Initial Purchaser, assuming the obligations of the Issuer under this Agreement, the Indenture and the Notes. (s) The Initial Purchaser shall have received, in the form and substance satisfactory to the Initial Pur- chaser and dated the Time of Purchase, a signed report of Brooxx & Kushxxx, xxecial patent counsel to Glasstech, substantially in the form of EXHIBIT 3 hereto. (t) Glasstech shall have received an opinion, in form and substance satisfactory to the Initial Purchaser and counsel for the Initial Purchaser and dated the Time of Purchase, of Houlihan, Lokey, Howaxx & Xukix, Xxc., with respect to the solvency of the Surviving Company. (u) The redemption of the Existing Notes shall have been consummated or shall be consummated simultaneously with the Offering. (v) The Trustee shall have received letters, addressed to the Trustee, from Bakex & Xostxxxxx XXX to the effect that their respective opinions delivered in accordance with Section 4.1(a) may be relied upon by the Trustee as though the same were delivered to it. (w) The Initial Purchaser shall have sold 70,000 Units in accordance with the provisions of Section 3.3 hereof. On or before the Closing, the Initial Purchaser and counsel to the Initial Purchaser shall have received such further documents, opinions, certificates and schedules or other instruments relating to the business, corporate, legal and financial affairs of the Glasstech Entities and Glasstech's Subsidiaries as they may reasonably request.
Appears in 1 contract
Conditions Precedent to Obligations of the Initial Purchaser. The obligation of the Initial Purchaser to purchase the Securities Notes to be purchased by it hereunder at the Closing is subject subject, at the Time of Purchase, to the satisfaction of the following conditions:
(a) The Initial Purchaser shall have received, at At the Time of Purchase, a signed opinion of Bakex & Xostxxxxx XXX, as counsel to Holding and the Issuer, substantially in Initial Purchaser shall have received the form of EXHIBIT 1 heretoopinion, dated as of the Time of Purchase and addressed to the Initial Purchaser Purchaser, of Kirkxxxx & Xllix, xxunsel for the Company, in form and substance reasonably satisfactory to counsel for the Initial Purchaser, to the effect as set forth on Exhibit A hereto.
(b) The Initial Purchaser shall have receivedreceived an opinion, at addressed to the Initial Purchaser in form and substance satisfactory to the Initial Purchaser and dated the Time of Purchase, a signed opinion of Cahixx Xxxxxx & Xeinxxx, xxunsel counsel to the Initial Purchaser, substantially in the form of EXHIBIT 2 hereto, dated the Time of Pur- chase and addressed to the Initial Purchaser and satisfactory to the Initial Purchaser. In rendering such opinions in accordance with Sections 4.1(a) and (b), each such counsel may rely as to factual matters upon certificates or other documents furnished by officers and directors of the Glasstech Entities and representations of the Initial Purchaser and by government officials, and upon such other documents as such counsel deem appropriate as a basis for their opinion. Each such counsel may specify the jurisdictions in which it is admitted to practice and that it is not admitted to practice in any other jurisdiction or an expert in the law of any other jurisdiction. To the extent such opinion concerns the laws of any other such jurisdiction such counsel may rely upon the opinion of counsel (satisfactory to the Initial Purchaser) admitted to practice in such jurisdiction. Any opinion relied upon by such counsel as aforesaid shall be delivered to the Initial Purchaser together with the opinion of such counsel, which opinion shall state that such counsel believes that their and the Initial Purchaser's reliance thereon is justified.
(c) The Initial Purchaser shall have received from Ernst & Young LLP a comfort letter or letters dated the date hereof and the Time date of Purchase the Closing in form and substance reasonably satisfactory to counsel to the Initial Purchaser.
(d) The representations and warranties made by Holding the Company and the Issuer Guarantors herein shall be true and correct in all material respects (except for changes expressly provided for in this Agreement) on and as of the Time of Purchase with the same effect as though such representations and warranties had been made on and as of the Time of Purchase, each of the Glasstech Entities Company and the Guarantors shall have complied in all material respects with all agreements as set forth in or contemplated hereunder and in the other Basic Documents required to be performed by it at or prior to the Time of Purchase and the Company shall have furnished to the Initial Purchaser a certificate, dated the Time of Purchase, to such effect.
(e) Subsequent to the date of the Final Memorandum, (i) there shall not have been any change that has or could reasonably be expected to have a Material Adverse Effect and (ii) the Company and its subsidiaries shall not have taken any voluntary, affirmative action to conduct their respective businesses other than in the ordinary course.
(f) At the Time of Purchase and after giving effect to the consummation of the transactions contemplated by this Agreement and the other Basic Documents, there shall exist no Default or Event of Default.
(g) The purchase of and payment for the Securities Notes by the Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation (including, without limitation, Regulation G, T, U or X of the Board of Governors of the Federal Reserve System).
(h) At the Time of Purchase, the Initial Purchaser shall have received a certificate, dated the Time of Purchase, from the appropriate officer of each of the Glasstech Entities Company stating that the conditions specified in Sections 4.1(d), (e4.1(e), (f), (g) and (lh) have been satisfied or duly waived at the Time of Purchase.
(i) Each of the Basic Documents shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect.
(j) All proceedings taken required in connection with order to issue the issuance of the Securities Notes and consummate the transactions contemplated by this Agreement, the other Basic Documents Agreement and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents of the Company and the Guarantors as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(k) The Issuer shall have furnished to the Initial Purchaser the form of Revolving Credit Facility and a true and correct executed copy of the Merger Agreement including all schedules and exhibits thereto.
(l) The sale of the Securities Notes hereunder shall not have been enjoined (temporarily or permanently) at the Time of Purchase.
(m) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (A) it is downgrading its rating assigned to any debt securities of Glasstech, or (B) it is reviewing its rating assigned to any debt securities of Glasstech with a view to possible downgrading, or with negative implications, or direction not determined.
(n) At the Time of Purchase, each Glasstech Entity shall have, to the extent it is a party thereto, complied in all material respects with all agreements and covenants in the Transaction Documents and performed all conditions specified therein (other than agreements or covenants which have been waived but only if such waivers are not required to be set forth in the Final Memorandum) to be complied with or performed at or prior to the Time of Purchase, and each of the Transaction Documents shall be in full force and effect.
(o) At the Time of Purchase, the Initial Purchaser shall have received copies of all certificates, documents and opinions, reasonably requested by the Initial Purchaser, delivered by any of the Glasstech Entities or any of their counsels and such other certificates, documents and opinions reasonably obtainable by the Glasstech Entities under the Transaction Documents in connection with any of the Transactions, together with letters addressed to the Initial Purchaser, stating that the Initial Purchaser may rely on such certificates and opinions as if they had been addressed to the Initial Purchaser.
(p) Each of the Transactions (other than the Offering) shall have been consummated, or shall be consummated simultaneously with the Offering, on the terms and conditions set forth in the Transaction Documents in the forms previously delivered to the Initial Purchaser and to which it shall not have reasonably objected.
(q) At the Effective Time, a certificate of merger with respect to the Merger shall have been filed with the Secretary of State of the State of Delaware.
(r) At the Time of Purchase, the Surviving Company shall have executed and delivered to the Initial Purchaser an agreement, in such form as is satisfactory to the Initial Purchaser, assuming the obligations of the Issuer under this Agreement, the Indenture and the Notes.
(s) The Initial Purchaser shall have received, in the form and substance satisfactory to the Initial Pur- chaser and dated the Time of Purchase, a signed report of Brooxx & Kushxxx, xxecial patent counsel to Glasstech, substantially in the form of EXHIBIT 3 hereto.
(t) Glasstech shall have received an opinion, in form and substance satisfactory to the Initial Purchaser and counsel for the Initial Purchaser and dated the Time of Purchase, of Houlihan, Lokey, Howaxx & Xukix, Xxc., with respect to the solvency of the Surviving Company.
(u) The redemption of the Existing Notes shall have been consummated or shall be consummated simultaneously with the Offering.
(v) The Trustee shall have received letters, addressed to the Trustee, from Bakex & Xostxxxxx XXX to the effect that their respective opinions delivered in accordance with Section 4.1(a) may be relied upon by the Trustee as though the same were delivered to it.
(w) The Initial Purchaser shall have sold 70,000 Units in accordance with the provisions of Section 3.3 hereof. On or before the Closing, the Initial Purchaser and counsel to the Initial Purchaser shall have received such further documents, opinions, certificates and schedules or other instruments relating to the business, corporate, legal and financial affairs of the Glasstech Entities and Glasstech's Subsidiaries as they may reasonably request.
Appears in 1 contract
Samples: Securities Purchase Agreement (Aircraft Service International Inc)
Conditions Precedent to Obligations of the Initial Purchaser. The obligation of the Initial Purchaser to purchase the Securities to be purchased by it hereunder is subject to the satisfaction of the following conditions:
(a) The Initial Purchaser shall have received, at At the Time of Purchase, a signed opinion of Bakex & Xostxxxxx XXXthe Initial Purchaser shall have received an opinion, as addressed to the Initial Purchaser in form and substance satisfactory to counsel to Holding the Initial Purchaser and dated the IssuerTime of Purchase, from Akin, Gump, Strauss, Xxxxx & Xxxx, LLP, counsel to the Company, in substantially in the form set forth in Exhibit C hereto and (ii) a reliance letter, addressed to the Initial Purchaser, in form and substance satisfactory to counsel to the Initial Purchaser and dated the Time of EXHIBIT 1 heretoPurchase, from each of (A) Akin, Gump, Strauss, Xxxxx & Xxxx, LLP, counsel to the Company, entitling the Initial Purchaser to rely upon their opinion being issued to the lenders under the Credit Facilities relating to the Financing Documents and dated the Time of Purchase and addressed (B) Xxxxxxxx & Xxxxx, counsel to HarnCo, entitling the Initial Purchaser to rely upon their opinion being issued to the Company relating to the Recapitalization Documents and satisfactory dated the Time of Purchase, which opinion shall be substantially in the form attached as Exhibit H to counsel for the Initial PurchaserRecapitalization Agreement.
(b) The Initial Purchaser shall have receivedreceived an opinion, at addressed to the Initial Purchaser in form and substance satisfactory to the Initial Purchaser and dated the Time of Purchase, a signed opinion of Cahixx Xxxxxx Xxxxxxx Xxxx & XeinxxxXxxxxxxxx, xxunsel counsel to the Initial Purchaser, substantially in the form of EXHIBIT 2 hereto, dated the Time of Pur- chase and addressed as to such matters as the Initial Purchaser and satisfactory to the Initial Purchasershall reasonably request. In rendering such opinions in accordance with Sections 4.1(a) and (b), each such counsel may rely as to factual matters upon certificates or other documents furnished by officers and directors of the Glasstech Entities Company and representations of the Initial Purchaser and by government officials, and upon such other documents as such counsel deem appropriate as a basis for their opinion. Each such counsel may specify the jurisdictions in which it is admitted to practice and that it is not admitted to practice in any other jurisdiction or an expert in the law of any other jurisdiction. To the extent such opinion concerns the laws of any other such jurisdiction such counsel may rely upon the opinion of counsel (satisfactory to the Initial Purchaser) admitted to practice in such jurisdiction. Any opinion relied upon by such counsel as aforesaid shall be delivered to the Initial Purchaser together with the opinion of such counsel, which opinion shall state that such counsel believes that their and the Initial Purchaser's reliance thereon is justified.
(c) The Initial Purchaser shall have received from Ernst & Young Price Waterhouse LLP a comfort letter or letters dated the date hereof and the Time of Purchase in form and substance reasonably satisfactory to counsel to the Initial Purchaser.
(d) The Initial Purchaser shall have received a report from Valuation Research Corporation, in form and substance satisfactory to counsel to the Initial Purchaser, indicating that the Company and its Subsidiaries, on a consolidated basis, is Solvent, before and after giving effect to the Transactions, including those contemplated by this Agreement and the other Xxxxxx Delivered Documents (including the application of proceeds by the Company from the issuance and sale of the Units by the Company at the Time of Purchase as described in the Final Memorandum).
(e) The representations and warranties made by Holding and the Issuer Company herein shall be true and correct in all material respects (except for changes expressly provided for in this Agreement) on and as of the Time of Purchase with the same effect as though such representations and warranties had been made on and as of the Time of Purchase, each after giving effect to the consummation of all of the Glasstech Entities Transactions; the Company shall have complied in all material respects with all agreements as set forth in or contemplated hereunder and in the other Basic Documents required to be performed by it the Company at or prior to the Time of Purchase.
(f) Subsequent to the date of the Final Memorandum, there shall not have been any change which has had or could be reasonably likely to have a Material Adverse Effect.
(g) At the Time of Purchase and Purchase, after giving effect to the consummation of the transactions contemplated by this Agreement Agreement, the other Xxxxxx Delivered Documents and the other Basic DocumentsTransactions, there shall exist no Default or Event of DefaultDefault on the part of the Company or its Subsidiaries (assuming that the Exchange Indenture is in effect at such time) or Voting Rights Triggering Event.
(gh) The purchase of and payment for the Securities by the Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation (including, without limitation, Regulation G, T, U or X of the Board of Governors of the Federal Reserve System).
(hi) At the Time of Purchase, the Initial Purchaser shall have received a certificate, dated the Time of Purchase, from and executed by the appropriate officer of each President and the Vice President - Finance of the Glasstech Entities stating that Company, to the effect that:
(i) All of the representations and warranties of the Company set forth in this Agreement are true and correct as if made on and as of the Time of Purchase and the Company has complied in all material respects with all agreements and satisfied all conditions specified in Sections 4.1(d), (e), (f) and (l) have been on their part to be performed or satisfied at or duly waived at prior to the Time of Purchase.
(iii) Each The issuance and sale of the Basic Documents shall be reasonably satisfactory in form Securities pursuant to this Agreement and substance the Final Memorandum and the consummation of the Transactions have not been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued and there has not been any legal action, order, decree or other administrative proceeding instituted or threatened against the Company relating to the Initial Purchaser issuance of the Securities or in connection with any of the other Transactions.
(iii) Subsequent to the date of this Agreement and since the date of the most recent financial statements in the Final Memorandum (exclusive of any amendment or supplement thereto after the date hereof), there has not occurred (A) any change, or any development involving a prospective change, in or affecting the general affairs, management, business, condition (financial or other), properties, prospects or results of operations of the Company or the Subsidiaries or the MHE Business, both before and after giving effect to the Recapitalization and the other Transactions, not contemplated by the Final Memorandum that would materially adversely affect the market for the Securities, or (B) any event or development relating to or involving any of the Company or the Subsidiaries that makes any statement made in the Final Memorandum untrue or that requires the making of any addition to or change in the Final Memorandum in order to state a material fact required by any applicable law, rule or regulation to be stated therein or necessary in order to make the statements therein not misleading.
(iv) There has not been any change in the capital stock of the Company or any of its Subsidiaries nor any material increase in the consolidated short-term or long-term debt of the Company from that set forth in or contemplated in the Final Memorandum and the Company and the Subsidiaries have no liabilities or obligations, contingent or otherwise (whether or not in the ordinary course of business), that are material to the Company, its Subsidiaries and the MHE Business, taken as a whole, both before and after giving effect to the Recapitalization and the other Transactions, other than those reflected in the Final Memorandum.
(j) At the Time of Purchase, each of the Xxxxxx Delivered Documents and the other material documents pertaining to the Transactions shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect.
(j) All proceedings taken in connection with the issuance of the Securities and the transactions contemplated by this Agreement, the other Basic Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(k) The Issuer shall have furnished to the Initial Purchaser the form of Revolving Credit Facility and a true and correct executed copy of the Merger Agreement including all schedules and exhibits thereto.
(l) The sale of the Securities hereunder shall not have been enjoined (temporarily or permanently) at the Time of Purchase.
(m) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (A) it is downgrading its rating assigned to any debt securities of Glasstech, or (B) it is reviewing its rating assigned to any debt securities of Glasstech Contemporaneously with a view to possible downgrading, or with negative implications, or direction not determined.
(n) At the Time of Purchase, each Glasstech Entity shall have, to the extent it is a party thereto, complied in all material respects with all agreements and covenants in the Transaction Documents and performed all conditions specified therein (other than agreements or covenants which have been waived but only if such waivers are not required to be set forth in the Final Memorandum) to be complied with or performed at or prior to the Time of Purchase, and each of the Transaction Documents shall be in full force and effect.
(o) At the Time of Purchase, the Initial Purchaser shall have received copies of all certificates, documents Recapitalization and opinions, reasonably requested by each other transaction contemplated in the Initial Purchaser, delivered by any of the Glasstech Entities or any of their counsels and such other certificates, documents and opinions reasonably obtainable by the Glasstech Entities under the Transaction Recapitalization Documents in connection with any of the Transactions, together with letters addressed to the Initial Purchaser, stating that the Initial Purchaser may rely on such certificates and opinions as if they had been addressed to the Initial Purchaser.
(p) Each of the Transactions (other than the Offering) shall have been consummated, or shall be consummated simultaneously with the Offering, on the terms and conditions set forth in the Transaction Recapitalization Agreement and such other Recapitalization Documents as in effect as of the forms previously delivered to the Initial Purchaser and to which it shall not have reasonably objecteddate hereof.
(ql) At Contemporaneously with the Effective TimeTime of Purchase, a certificate of merger with respect to the Merger Xxxxxx Material Handling shall have been filed with received at least $55 million aggregate cash proceeds from borrowings under the Secretary of State of the State of DelawareCredit Agreement.
(rm) At Contemporaneously with the Time of Purchase, the Surviving Company shall have executed and delivered to transactions contemplated under the Initial Purchaser an agreement, in such form as is satisfactory to the Initial Purchaser, assuming the obligations of the Issuer under this Agreement, the Indenture and the Notes.
(s) The Initial Purchaser shall have received, in the form and substance satisfactory to the Initial Pur- chaser and dated the Time of Purchase, a signed report of Brooxx & Kushxxx, xxecial patent counsel to Glasstech, substantially in the form of EXHIBIT 3 hereto.
(t) Glasstech shall have received an opinion, in form and substance satisfactory to the Initial Purchaser and counsel for the Initial Purchaser and dated the Time of Purchase, of Houlihan, Lokey, Howaxx & Xukix, Xxc., with respect to the solvency of the Surviving Company.
(u) The redemption of the Existing Notes Note Purchase Agreement shall have been consummated or and Xxxxxx Material Handling shall be consummated simultaneously with have received at least $200 million aggregate cash proceeds (less applicable commissions) from the Offeringoffering contemplated therein.
(vn) The Trustee HarnCo shall have received lettersat least $54 million aggregate cash proceeds from MHE Investments, addressed to and all other transactions contemplated in connection with the Trustee, from Bakex & Xostxxxxx XXX to Equity Investment (including the effect that their respective opinions delivered retention by HarnCo of capital interests in accordance the Company with Section 4.1(aaggregate implied value of not less than $12 million) may be relied upon by the Trustee as though the same were delivered to it.
(w) The Initial Purchaser shall have sold 70,000 Units in accordance with the provisions of Section 3.3 hereof. On or before the Closing, the Initial Purchaser and counsel to the Initial Purchaser shall have received such further documents, opinions, certificates and schedules or other instruments relating to the business, corporate, legal and financial affairs of the Glasstech Entities and Glasstech's Subsidiaries as they may reasonably requestbeen consummated.
Appears in 1 contract
Conditions Precedent to Obligations of the Initial Purchaser. The obligation of the Initial Purchaser to purchase the Securities Shares to be purchased by it hereunder is subject to the satisfaction of the following conditions:
(a) The Initial Purchaser shall have receivedreceived an opinion, at addressed to the Initial Purchaser in form and substance satisfactory to counsel to the Initial Purchaser and dated the Time of Purchase, a signed opinion of Bakex from Debevoise & Xostxxxxx XXXXxxxxxxx, as counsel to Holding and the IssuerCompany, substantially covering the matters set forth in the form of EXHIBIT Exhibit 1 hereto, dated the Time of Purchase and addressed to the Initial Purchaser and satisfactory to counsel for the Initial Purchaser.
(b) The Initial Purchaser shall have receivedreceived an opinion, at addressed to the Initial Purchaser in form and substance satisfactory to the Initial Purchaser and dated the Time of Purchase, a signed opinion of Cahixx Xxxxxx Xxxxxx & XeinxxxXxxxxxx, xxunsel counsel to the Initial Purchaser, substantially in the form of EXHIBIT Exhibit 2 hereto, dated the Time of Pur- chase and addressed to the Initial Purchaser and satisfactory to the Initial Purchaser. In rendering such opinions in accordance with Sections 4.1(a) and (b), each such counsel may rely as to factual matters upon certificates or other documents furnished by officers and directors of the Glasstech Entities Company and representations of the Initial Purchaser and by government officials, and upon such other documents as such counsel deem appropriate as a basis for their opinion. Each such counsel may specify the jurisdictions in which it is admitted to practice and that it is not admitted to practice in any other jurisdiction or an expert in the law of any other jurisdiction. To the extent such opinion concerns the laws of any other such jurisdiction such counsel may rely upon the opinion of counsel (satisfactory to the Initial Purchaser) admitted to practice in such jurisdiction. Any opinion relied upon by such counsel as aforesaid shall be delivered to the Initial Purchaser together with the opinion of such counsel, which opinion shall state that such counsel believes that their and the Initial Purchaser's reliance thereon is justified.
(c) The Company shall have received an opinion, in form and substance satisfactory to the Initial Purchaser and counsel to the Initial Purchaser and dated the Time of Purchase, of Chartered Capital Advisers, Inc., concerning the effect of the Offering on the capital structure of the Company.
(d) The Initial Purchaser shall have received from Ernst Coopers & Young Xxxxxxx a comfort letter or letters dated the date hereof and the Time of Purchase in form and substance reasonably satisfactory to counsel to the Initial Purchaser.
(de) The representations and warranties made by Holding and the Issuer Company herein shall be true and correct in all material respects (except for changes expressly provided for in this Agreement) on and as of the Time of Purchase with the same effect as though such representations and warranties had been made on and as of the Time of Purchase, each of ; the Glasstech Entities Company shall have complied in all material respects with all agreements to be performed as set forth in or contemplated hereunder and in the other Basic Documents required to be performed by it the Company at or prior to the Time of Purchase.
(f) Subsequent to the date of the Final Memorandum, (i) there shall not have been any change, or any development involving a prospective change, which has had or could be reasonably likely to have a Material Adverse Effect, and (ii) the Company and its Subsidiaries shall have conducted their respective businesses only in the ordinary course (except as contemplated or disclosed in the Final Memorandum).
(g) At the Time of Purchase and after giving effect to the consummation of the transactions contemplated by this Agreement and the other Basic Documents, there shall exist no Default or Event of DefaultVoting Rights Triggering Event.
(gh) The purchase of and payment for the Securities Shares by the Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation (including, without limitation, Regulation G, T, U or X of the Board of Governors of the Federal Reserve System).
(hi) At the Time of Purchase, the Initial Purchaser shall have received a certificate, dated the Time of Purchase, from the appropriate officer of each of the Glasstech Entities Company stating that the conditions specified in Sections 4.1(d), (e4.1(e), (f), (g) and (l) have been satisfied or duly waived at the Time of Purchase.
(ij) Each of the Basic Documents shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect.
(jk) All proceedings taken in connection with the issuance of the Securities Shares and the transactions contemplated by this Agreement, the other Basic Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(k) The Issuer shall have furnished to the Initial Purchaser the form of Revolving Credit Facility and a true and correct executed copy of the Merger Agreement including all schedules and exhibits thereto.
(l) The issuance and sale of the Securities Shares hereunder shall not have been enjoined (temporarily or permanently) at the Time of Purchase.
(m) There shall not have been any announcement by any "nationally recognized statistical rating organization," (as defined for purposes of in Rule 436(g) under of the Act, ) that (A) it is downgrading its rating assigned to any debt securities of Glasstechthe Company, or (B) it is reviewing its rating assigned to any debt securities of Glasstech the Company with a view to possible downgrading, or with negative implications, or of a possible change in any such rating that does not indicate the direction not determinedof the possible change.
(n) At the Time of Purchase, each Glasstech Entity shall have, to the extent it is a party thereto, complied in all material respects with all agreements and covenants in the Transaction Documents and performed all conditions specified therein (other than agreements or covenants which have been waived but only if such waivers are not required to be set forth in the Final Memorandum) to be complied with or performed at or prior to the Time of Purchase, and each of the Transaction Documents shall be in full force and effect.
(o) At the Time of Purchase, the Initial Purchaser shall have received copies of all certificates, documents and opinions, reasonably requested by the Initial Purchaser, delivered by any of the Glasstech Entities or any of their counsels and such other certificates, documents and opinions reasonably obtainable by the Glasstech Entities under the Transaction Documents in connection with any of the Transactions, together with letters addressed to the Initial Purchaser, stating that the Initial Purchaser may rely on such certificates and opinions as if they had been addressed to the Initial Purchaser.
(p) Each of the Transactions (other than the Offering) shall have been consummated, or shall be consummated simultaneously with the Offering, on the terms and conditions set forth in the Transaction Documents in the forms previously delivered to the Initial Purchaser and to which it shall not have reasonably objected.
(q) At the Effective Time, a certificate of merger with respect to the Merger shall have been filed with the Secretary of State of the State of Delaware.
(r) At the Time of Purchase, the Surviving Company shall have executed and delivered to the Initial Purchaser an agreement, in such form as is satisfactory to the Initial Purchaser, assuming the obligations of the Issuer under this Agreement, the Indenture and the Notes.
(s) The Initial Purchaser shall have receivedsold the Shares in accordance with the provisions of Section 3.2 hereof.
(o) The Trustee shall have received a letter, in the form and substance satisfactory addressed to the Initial Pur- chaser Trustee and dated the Time of Purchase, a signed report of Brooxx from Debevoise & Kushxxx, xxecial patent counsel to Glasstech, substantially in the form of EXHIBIT 3 hereto.
(t) Glasstech shall have received an opinion, in form and substance satisfactory to the Initial Purchaser and counsel for the Initial Purchaser and dated the Time of Purchase, of Houlihan, Lokey, Howaxx & Xukix, Xxc., with respect to the solvency of the Surviving Company.
(u) The redemption of the Existing Notes shall have been consummated or shall be consummated simultaneously with the Offering.
(v) The Trustee shall have received letters, addressed to the Trustee, from Bakex & Xostxxxxx XXX Xxxxxxxx to the effect that their respective opinions its opinion delivered in accordance with Section 4.1(a) may be relied upon by the Trustee as though the same were was delivered to it.
(w) The Initial Purchaser shall have sold 70,000 Units in accordance with the provisions of Section 3.3 hereof. On or before the ClosingTime of Purchase, the Initial Purchaser and counsel to the Initial Purchaser shall have received such further documents, opinions, certificates and schedules or other instruments relating to the business, corporate, legal and financial affairs of the Glasstech Entities Company and Glasstech's its Subsidiaries as they may reasonably request.
Appears in 1 contract
Samples: Securities Purchase Agreement (Fairfield Manufacturing Co Inc)
Conditions Precedent to Obligations of the Initial Purchaser. The obligation of the Initial Purchaser to purchase the Securities Notes to be purchased by it hereunder is subject subject, at the Time of Purchase, to the satisfaction or waiver of the following conditions:
(a) The Initial Purchaser shall have received, at At the Time of Purchase, a signed opinion of Bakex & Xostxxxxx XXX, as counsel to Holding and the Issuer, substantially in Initial Purchaser shall have received the form of EXHIBIT 1 heretoopinion, dated as of the Time of Purchase and addressed to the Initial Purchaser Purchaser, of Winston & Straxx, xxunsel for the Company and the Guarantors in form and substance satisfactory to counsel for the Initial Purchaser. At the time of Purchase, the Initial Purchaser shall have received the opinion, dated as of the Time of Purchase and addressed to the Initial Purchaser, of local counsel for Trimont Land Company and for Loon Mountain and Loon Realty, in form and substance satisfactory to counsel for the Initial Purchaser. In addition, the Initial Purchaser shall have received a letter or letters permitting it to rely on any opinions rendered by counsel to the Company and/or the Guarantors in connection with the Transactions.
(b) The Initial Purchaser shall have receivedreceived an opinion, at addressed to the Initial Purchaser in form and substance satisfactory to the Initial Purchaser and dated the Time of Purchase, a signed opinion of Cahixx Xxxxxx & XeinxxxReinxxx, xxunsel to the Initial Purchaser, substantially in the form of EXHIBIT 2 hereto, dated the Time of Pur- chase and addressed to the Initial Purchaser and satisfactory to the Initial Purchaser. In rendering such opinions in accordance with Sections 4.1(a) and (b), each such counsel may rely as to factual matters upon certificates or other documents furnished by officers and directors of the Glasstech Entities and representations of the Initial Purchaser and by government officials, and upon such other documents as such counsel deem appropriate as a basis for their opinion. Each such counsel may specify the jurisdictions in which it is admitted to practice and that it is not admitted to practice in any other jurisdiction or an expert in the law of any other jurisdiction. To the extent such opinion concerns the laws of any other such jurisdiction such counsel may rely upon the opinion of counsel (satisfactory to the Initial Purchaser) admitted to practice in such jurisdiction. Any opinion relied upon by such counsel as aforesaid shall be delivered to the Initial Purchaser together with the opinion of such counsel, which opinion shall state that such counsel believes that their and the Initial Purchaser's reliance thereon is justified.
(c) The Initial Purchaser shall have received from each of Ernst & Young LLP and Price Waterhouse LLP a comfort letter or letters dated the date hereof and the Time of Purchase Closing in form and substance reasonably satisfactory to counsel to the Initial Purchaser.
(d) The representations and warranties made by Holding the Company and the Issuer Guarantors herein shall be true and correct in all material respects (except for changes expressly provided for in this Agreement) on and as of the Time of Purchase with the same effect as though such representations and warranties had been made on and as of the Time of Purchase, each of and the Glasstech Entities Company and the Guarantors shall have complied in all material respects with all agreements as set forth in or contemplated hereunder and in the other Basic Documents required to be performed by it the Company and the Guarantors at or prior to the Time of Purchase.
(e) Subsequent to the date of the Final Memorandum, (i) there shall not have been any change, or any development involving a prospective change, which has had or would reasonably be expected to have a Material Adverse Effect and (ii) the Company and its Subsidiaries shall have conducted their respective businesses only in the ordinary course except to the extent contemplated by the Transactions.
(f) At the Time of Purchase and after giving effect to the consummation of the transactions contemplated by this Agreement and the other Basic Documents, there shall exist no Default or Event of Default.
(g) The purchase of and payment for the Securities Notes by the Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation (including, without limitation, Regulation G, T, U or X of the Board of Governors of the Federal Reserve System).
(h) At the Time of Purchase, the Initial Purchaser shall have received a certificate, dated the Time of Purchase, from the appropriate officer of each of Company and the Glasstech Entities Guarantors stating that the conditions specified in Sections 4.1(d), (e), (f) and (lg) have been satisfied or duly waived at the Time of Purchase.
(i) Each of the Basic Documents shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect.
(j) All proceedings taken in connection with the issuance of the Securities Notes and the transactions contemplated by this Agreement, the other Basic Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(k) The Issuer shall have furnished to Neither the Initial Purchaser the form of Revolving Credit Facility and a true and correct executed copy of the Merger Agreement including all schedules and exhibits thereto.
(l) The sale of the Securities Notes hereunder nor any of the other Transactions shall not have been enjoined (temporarily or permanently) at the Time of Purchase.
(ml) There Subsequent to the execution and delivery of this Agreement, there shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (A) it is downgrading its rating assigned to any debt securities of Glasstechthe Company or any Subsidiary, or (B) it is reviewing its rating assigned to any debt securities of Glasstech the Company or any Subsidiary with a view to possible downgrading, or with negative implications, or direction not determined.
(nm) At Each agreement or instrument executed in connection with the Time of Purchase, each Glasstech Entity Transactions shall have, be reasonably satisfactory in form and substance to the extent it is a party thereto, complied in all material respects with all agreements Initial Purchaser and covenants in the Transaction Documents and performed all conditions specified therein (other than agreements or covenants which shall have been waived but only if such waivers are not required to be set forth in executed and delivered by all the Final Memorandum) to be complied with or performed at or prior to the Time of Purchase, respective parties thereto and each of the Transaction Documents shall be in full force and effect.
(o) At the Time of Purchase, the Initial Purchaser . The Transactions shall have received copies of all certificates, documents and opinions, reasonably requested by the Initial Purchaser, delivered by any of the Glasstech Entities or any of their counsels and such other certificates, documents and opinions reasonably obtainable by the Glasstech Entities under the Transaction Documents in connection with any of the Transactions, together with letters addressed to the Initial Purchaser, stating that the Initial Purchaser may rely on such certificates and opinions as if they had been addressed to the Initial Purchaser.
(p) Each of the Transactions (other than the Offering) shall have been consummated, or shall be consummated simultaneously with the Offering, on the terms and conditions set forth in the Transaction Documents in the forms previously delivered to the Initial Purchaser and to which it shall not have reasonably objected.
(q) At the Effective Time, a certificate of merger with respect to the Merger shall have been filed with the Secretary of State of the State of Delaware.
(r) At the Time of Purchase, the Surviving Company shall have executed and delivered to the Initial Purchaser an agreement, in such form as is satisfactory to the Initial Purchaser, assuming the obligations of the Issuer under this Agreement, the Indenture and the Notes.
(s) The Initial Purchaser shall have received, in the form and substance satisfactory to the Initial Pur- chaser and dated the Time of Purchase, a signed report of Brooxx & Kushxxx, xxecial patent counsel to Glasstech, substantially in the form of EXHIBIT 3 hereto.
(t) Glasstech shall have received an opinion, in form and substance satisfactory to the Initial Purchaser and counsel for the Initial Purchaser and dated the Time of Purchase, of Houlihan, Lokey, Howaxx & Xukix, Xxc., with respect to the solvency of the Surviving Company.
(u) The redemption of the Existing Notes shall each have been consummated on or shall be consummated simultaneously with the Offering.
(v) The Trustee shall have received letters, addressed prior to the Trustee, from Bakex & Xostxxxxx XXX to the effect that their respective opinions delivered in accordance with Section 4.1(a) may be relied upon by the Trustee as though the same were delivered to it.
(w) The Initial Purchaser shall have sold 70,000 Units in accordance with the provisions of Section 3.3 hereofClosing Date. On or before the Closing, the Initial Purchaser and counsel to the Initial Purchaser shall have received such further documents, opinions, certificates and schedules or other instruments relating to the business, corporate, legal and financial affairs of the Glasstech Entities Company and Glasstech's its Subsidiaries as they may reasonably request.
Appears in 1 contract
Samples: Securities Purchase Agreement (Booth Creek Ski Holdings Inc)
Conditions Precedent to Obligations of the Initial Purchaser. The obligation of the Initial Purchaser to purchase the Securities Notes to be purchased by it hereunder is subject sub- ject, at the Time of Purchase, to the satisfaction of the following conditions:
(a) The Initial Purchaser shall have receivedreceived an opinion, at addressed to the Initial Purchaser in form and substance satisfactory to counsel to the Initial Purchaser and dated the Time of Purchase, a signed opinion of Bakex from Xxxxxx, Xxxxxxxx & Xostxxxxx XXXXxxxxx, as P.A., special counsel to Holding and the IssuerIssuers, substantially covering the matters set forth in the form of EXHIBIT Exhibit 1 attached hereto, dated the Time of Purchase and addressed to the Initial Purchaser and satisfactory to counsel for the Initial Purchaser.
(b) The Initial Purchaser shall have receivedreceived an opinion, at addressed to the Initial Purchaser in form and substance satisfactory to the Initial Purchaser and dated the Time of Purchase, a signed opinion of Cahixx Xxxxxx Xxxxxx & XeinxxxXxxxxxx, xxunsel counsel to the Initial Purchaser, substantially in the form of EXHIBIT Exhibit 2 attached hereto, dated the Time of Pur- chase and addressed to the Initial Purchaser and satisfactory to the Initial Purchaser. In rendering such opinions in accordance with Sections 4.1(a) and (b)) above, each such counsel may rely as to factual matters upon certificates or other documents furnished by officers and directors of the Glasstech Entities Issuers and representations of the Initial Purchaser and by government officials, and upon such other documents as such counsel deem appropriate as a basis for their opinion. Each such counsel may specify the jurisdictions in which it is admitted to practice and that it is not admitted to practice in any other jurisdiction or an expert in the law of any other jurisdiction. To the extent such opinion concerns the laws of any other such jurisdiction such counsel may rely upon the opinion of counsel (satisfactory to the Initial Purchaser) admitted to practice in such jurisdiction. Any opinion relied upon by such counsel as aforesaid shall be delivered to the Initial Purchaser together with the opinion of such counsel, which opinion shall state that such counsel believes that their and the Initial Purchaser's reliance thereon is justified.
(c) The Initial Purchaser shall have received from Ernst & Young Xxxxxx Xxxxxxxx LLP a comfort letter or letters dated as of the date hereof and as of the Time of Purchase Closing Date in form and substance reasonably satisfactory to counsel to the Initial Purchaser.
(d) The representations and warranties made by Holding and the Issuer Issuers herein shall be true and correct in all material respects (except for changes expressly provided for in this Agreement) on and as of the Time of Purchase with the same effect as though such representations and warranties had been made on and as of the Time of Purchase, each of the Glasstech Entities Issuers shall have complied in all material respects with all agreements as set forth in or contemplated hereunder and in the other Basic Documents required to be performed per- formed by it at or prior to the Time of Purchase and the Issuers shall have furnished to the Initial Purchaser a certificate, dated the Time of Purchase, to such effect.
(e) Subsequent to the date of the Final Memorandum, to the Closing Date, (i) there shall not have been any change, or any development involving a prospective change, which has affected or is reasonably expected to affect materially and adversely the businesses, properties, the financial condition or the results of operations of the Company or AOALP and (ii) the Company and AOALP shall have conducted their business only in the ordinary course.
(f) At the Time of Purchase and after giving effect to the consummation of the transactions contemplated by this Agreement and the other Basic Documents, there shall exist no Default or Event of Default.
(g) Subsequent to the date as of which information is given in the Final Memorandum, neither of the Issuers, AOALP or AOAI has incurred any liabilities or obligations, direct or contingent (other than in the ordinary course of business) that are material to the Issuers, AOALP or AOAI or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or other), assets, business prospects, results of operations or properties of the Issuers, AOALP or AOAI and there has not been any change in the capitalization of the Issuers, AOALP or AOAI that is material to the business, financial condition, assets, business, results of operations or properties of the Issuers, AOALP or AOAI except in each case as described in the Final Memorandum.
(h) The sale of the Notes hereunder has not been enjoined (temporarily or permanently).
(i) The purchase of and payment for the Securities Notes by the Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation (including, without limitation, Regulation G, T, U or X of the Board of Governors of the Federal Reserve System).
(hj) At the Time of Purchase, the Initial Purchaser shall have received a certificate, signed by the Chief Executive Officer or the President or the principal financial or accounting officer of the Company dated the Time of Purchase, from the appropriate officer of each of the Glasstech Entities Issuers stating that the conditions specified in Sections 4.1(d), (e), (f), (g) and (lh) have been satisfied or duly waived at the Time of Purchase.
(ik) Each of the Basic Documents shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect.
(jl) All proceedings taken in connection with the issuance of the Securities Notes and the transactions contemplated by this Agreement, the other Basic Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(k) The Issuer shall have furnished to the Initial Purchaser the form of Revolving Credit Facility and a true and correct executed copy of the Merger Agreement including all schedules and exhibits thereto.
(l) The sale of the Securities hereunder shall not have been enjoined (temporarily or permanently) at the Time of Purchase.
(m) There shall not have been any announcement by any "nationally recognized statistical rating organization," ", as defined for purposes of Rule 436(g) under the Act, that (A) it is downgrading its rating assigned to any debt securities of Glasstecheither of the Issuers, AOALP or AOAI or (B) it is reviewing its rating assigned to any debt securities of Glasstech either of the Issuers, AOALP or AOAI with a view to possible downgrading, or with negative implications, or direction not determined.
(n) At the Time of Purchase, each Glasstech Entity shall have, to the extent it is a party thereto, complied in all material respects with all agreements and covenants in the Transaction Documents and performed all conditions specified therein (other than agreements or covenants which have been waived but only if such waivers are not required to be set forth in the Final Memorandum) to be complied with or performed at or prior to the Time of Purchase, and each of the Transaction Holding Company Documents shall be in full force and effecteffect on the terms described in the Final Memorandum and the transfers to the holding company structure described therein shall have been consummated.
(o) At the Time of Purchase, the Initial Purchaser The Issuers shall have received copies of all certificates, documents and opinions, reasonably requested by the Initial Purchaser, delivered by any of the Glasstech Entities or any of their counsels and such other certificates, documents and opinions reasonably obtainable by the Glasstech Entities under the Transaction Documents in connection with any of the Transactions, together with letters addressed furnished to the Initial Purchaser, stating that as soon as they have been prepared, a copy of any unaudited interim financial statements of the Initial Purchaser may rely on such certificates and opinions as if they had been addressed Issuers for any period subsequent to the Initial Purchaserperiod covered by the most recent financial statements appearing in the Final Memorandum.
(p) Each of the Transactions (other than the Offering) shall have been consummated, or shall be consummated simultaneously with the Offering, on the terms and conditions set forth in the Transaction Documents in the forms previously delivered to the Initial Purchaser and to which it shall not have reasonably objected.
(q) At the Effective Time, a certificate of merger with respect to the Merger shall have been filed with the Secretary of State of the State of Delaware.
(r) At the Time of Purchase, the Surviving Company shall have executed and delivered to the Initial Purchaser an agreement, in such form as is satisfactory to the Initial Purchaser, assuming the obligations of the Issuer under this Agreement, the Indenture and the Notes.
(s) The Initial Purchaser shall have received, in the form and substance satisfactory to the Initial Pur- chaser and dated the Time of Purchase, a signed report of Brooxx & Kushxxx, xxecial patent counsel to Glasstech, substantially in the form of EXHIBIT 3 hereto.
(t) Glasstech shall have received an opinion, in form and substance satisfactory to the Initial Purchaser and counsel for the Initial Purchaser and dated the Time of Purchase, of Houlihan, Lokey, Howaxx & Xukix, Xxc., with respect to the solvency of the Surviving Company.
(u) The redemption of the Existing Notes shall have been consummated or shall be consummated simultaneously with the Offering.
(v) The Trustee shall have received letters, addressed to the Trustee, from Bakex & Xostxxxxx XXX to the effect that their respective opinions delivered in accordance with Section 4.1(a) may be relied upon by the Trustee as though the same were delivered to it.
(w) The Initial Purchaser shall have sold 70,000 Units in accordance with the provisions of Section 3.3 hereof. On or before the Closing, the Initial Purchaser and counsel to the Initial Purchaser shall have received such further documents, opinions, certificates and schedules or other instruments relating to the business, corporatecorpo- rate, legal and financial affairs of the Glasstech Entities and Glasstech's Subsidiaries Issuers as they may reasonably request.
Appears in 1 contract
Conditions Precedent to Obligations of the Initial Purchaser. The obligation of the Initial Purchaser to purchase the Securities Notes to be purchased by it hereunder is subject to the satisfaction or waiver of the following conditions:
(a) The Initial Purchaser shall have received, at At the Time of Purchase, a signed opinion of Bakex & Xostxxxxx XXX, as counsel to Holding and the Issuer, substantially in the form of EXHIBIT 1 heretoInitial Purchaser shall have received an opinion, dated as of the Time of Purchase and addressed to the Initial Purchaser, of Winston & Straxx, xxunsel for the Company and the Guarantors, in the form set forth on Exhibit A hereto. At the time of Purchase, the Initial Purchaser shall have received the opinion, dated as of the Time of Purchase and addressed to the Initial Purchaser, of local counsel for Trimont Land Company and for Ski Lifts, Inc., in form and substance satisfactory to counsel for the Initial Purchaser.
(b) The Initial Purchaser shall have receivedreceived an opinion, at addressed to the Initial Purchaser in form and substance satisfactory to the Initial Purchaser and dated the Time of Purchase, a signed opinion of Cahixx Xxxxxx & Xeinxxx, xxunsel to the Initial Purchaser, substantially in the form of EXHIBIT 2 hereto, dated the Time of Pur- chase and addressed to the Initial Purchaser and satisfactory to the Initial Purchaser. In rendering such opinions in accordance with Sections 4.1(a) and (b), each such counsel may rely as to factual matters upon certificates or other documents furnished by officers and directors of the Glasstech Entities and representations of the Initial Purchaser and by government officials, and upon such other documents as such counsel deem appropriate as a basis for their opinion. Each such counsel may specify the jurisdictions in which it is admitted to practice and that it is not admitted to practice in any other jurisdiction or an expert in the law of any other jurisdiction. To the extent such opinion concerns the laws of any other such jurisdiction such counsel may rely upon the opinion of counsel (satisfactory to the Initial Purchaser) admitted to practice in such jurisdiction. Any opinion relied upon by such counsel as aforesaid shall be delivered to the Initial Purchaser together with the opinion of such counsel, which opinion shall state that such counsel believes that their and the Initial Purchaser's reliance thereon is justified.
(c) The Initial Purchaser shall have received from each of Ernst & Young LLP, Arthxx Xxxexxxx XXX, Coopers & Lybrxxx XXX and Feldxxxx & Xssociates P.C., a comfort letter or letters dated the date hereof and the Time of Purchase Closing in form and substance reasonably satisfactory to counsel to the Initial Purchaser.
(d) The representations and warranties made by Holding the Company and the Issuer Guarantors herein shall be true and correct in all material respects (except for changes expressly provided for in this Agreement) on and as of the Time of Purchase with the same effect as though such representations and warranties had been made on and as of the Time of Purchase, each of and the Glasstech Entities Company and the Guarantors shall have complied in all material respects with all agreements as set forth in or contemplated hereunder and in the other Basic Documents required to be performed by it the Company and the Guarantors at or prior to the Time of Purchase.
(e) Subsequent to the date of the Final Memorandum, (i) there shall not have been any change, or any development involving a prospective change, which has had or would reasonably be expected to have a Material Adverse Effect and (ii) the Company and its Subsidiaries shall have conducted their respective businesses only in the ordinary course.
(f) At the Time of Purchase and after giving effect to the consummation of the transactions contemplated by this Agreement and the other Basic Documents, there shall exist no Default or Event of Default.
(g) The purchase of and payment for the Securities Notes by the Initial Purchaser hereunder shall not be prohibited or enjoined (temporarily or permanently) by any applicable law or governmental regulation (including, without limitation, Regulation G, T, U or X of the Board of Governors of the Federal Reserve System).
(h) At the Time of Purchase, the Initial Purchaser shall have received a certificate, dated the Time of Purchase, from the appropriate officer Chairman of the Board, President or any Vice President and the Chief Financial Officer of each of the Glasstech Entities Company and the Guarantors stating that the conditions specified in Sections 4.1(d), (e), (f) and (lg) have been satisfied or duly waived at the Time of Purchase.
(i) Each of the Basic Documents shall be reasonably satisfactory in form and substance to the Initial Purchaser and shall have been executed and delivered by all the respective parties thereto and shall be in full force and effect.
(j) All proceedings taken in connection with the issuance of the Securities Notes and the transactions contemplated by this Agreement, the other Basic Documents and all documents and papers relating thereto shall be reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser. The Initial Purchaser and counsel to the Initial Purchaser shall have received copies of such papers and documents as they may reasonably request in connection therewith, all in form and substance reasonably satisfactory to them.
(k) The Issuer shall have furnished to the Initial Purchaser the form of Revolving Credit Facility and a true and correct executed copy of the Merger Agreement including all schedules and exhibits thereto.
(l) The sale of the Securities Notes hereunder shall not have been enjoined (temporarily or permanently) at the Time of Purchase.
(ml) There Subsequent to the execution and delivery of this Agreement, there shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (A) it is downgrading its rating assigned to any debt securities of Glasstechthe Company or any Subsidiary, or (B) it is reviewing its rating assigned to any debt securities of Glasstech the Company or any Subsidiary with a view to possible downgrading, or with negative implications, or direction not determined.
(nm) At In the Time of Purchase, each Glasstech Entity shall have, event that the Initial Purchaser exercises its Option provided in Section 2.2(b) hereof to the extent it is a party thereto, complied in purchase all material respects with all agreements and covenants in the Transaction Documents and performed all conditions specified therein (other than agreements or covenants which have been waived but only if such waivers are not required to be set forth in the Final Memorandum) to be complied with or performed at or prior to the Time of Purchase, and each any portion of the Transaction Documents Option Notes, the representations and warranties of the Company and the Guarantors contained herein and the statements in any certificates furnished by the Company and the Guarantors hereunder shall be in full force true and effect.
(o) At correct as of each Date of Delivery and, at the Time relevant Date of PurchaseDelivery, the Initial Purchaser shall have received copies received:
(1) A certificate, dated such Date of all certificatesDelivery, documents and opinions, reasonably requested by the Initial Purchaser, delivered by any of the Glasstech Entities Chairman of the Board, President or any Vice President and the Chief Financial Officer of their counsels and such other certificates, documents and opinions reasonably obtainable by the Glasstech Entities under the Transaction Documents in connection with any each of the Transactions, together with letters addressed to Company and the Initial Purchaser, stating Guarantors confirming that the Initial Purchaser may rely on certificate delivered at the Time of Purchase pursuant to Section 4.1(h) hereof remains true and correct as of such certificates and opinions as if they had been addressed to the Initial PurchaserDate of Delivery.
(p2) Each The favorable opinion of Winston & Straxx, counsel for the Transactions (other than the Offering) shall have been consummated, or shall be consummated simultaneously with the Offering, on the terms and conditions set forth in the Transaction Documents in the forms previously delivered to the Initial Purchaser and to which it shall not have reasonably objected.
(q) At the Effective Time, a certificate of merger with respect to the Merger shall have been filed with the Secretary of State of the State of Delaware.
(r) At the Time of Purchase, the Surviving Company shall have executed and delivered to the Initial Purchaser an agreement, in such form as is satisfactory to the Initial Purchaser, assuming the obligations of the Issuer under this Agreement, the Indenture and the Notes.
(s) The Initial Purchaser shall have receivedGuarantors, and of local counsel for Trimont Land Company and for Ski Lifts, Inc., each in the form and substance satisfactory to counsel for the Initial Pur- chaser Purchaser, dated such Date of Delivery, relating to the Option Notes to be purchased on such Date of Delivery and dated otherwise to the Time of Purchase, a signed report of Brooxx & Kushxxx, xxecial patent counsel to Glasstech, substantially in same effect as the form of EXHIBIT 3 heretoopinion required by Section 4.1(a) hereof.
(t3) Glasstech shall have received an opinionA letter from Ernst & Young LLP,, in form and substance satisfactory to the Initial Purchaser and counsel for to the Initial Purchaser and dated such Date of Delivery, substantially the Time of Purchase, of Houlihan, Lokey, Howaxx & Xukix, Xxc., with respect same in form and substance as the letters furnished to the solvency of Initial Purchaser pursuant to Section 4.1(c) hereof, except that the Surviving Company.
(u"specified date" in the letter furnished pursuant to this Section 4.1(m)(3) The redemption of the Existing Notes shall have been consummated or shall be consummated simultaneously with the Offering.
(v) The Trustee shall have received letters, addressed a date not more than three days prior to the Trustee, from Bakex & Xostxxxxx XXX to the effect that their respective opinions delivered in accordance with Section 4.1(a) may be relied upon by the Trustee as though the same were delivered to it.
(w) The Initial Purchaser shall have sold 70,000 Units in accordance with the provisions such Date of Section 3.3 hereofDelivery. On or before the ClosingClosing or Date of Delivery, as the case may be, the Initial Purchaser and counsel to the Initial Purchaser shall have received such further documents, opinions, certificates and schedules or other instruments relating to the business, corporate, legal and financial affairs of the Glasstech Entities Company and Glasstech's its Subsidiaries as they may reasonably request.
Appears in 1 contract
