Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions: (a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum. (b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened. (c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein. (d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein. (e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C. (f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date. (g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date. (h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date. (i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 9 contracts
Samples: Purchase Agreement (Redearth Energy Inc), Purchase Agreement (Harvest Breeze Trust No. 2), Purchase Agreement (Breeze Resources Partnership)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, management or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to prospective purchasers of the Securities that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers Representatives shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed on behalf of the Company by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and Company, to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Representatives shall have received on the Closing Date an opinion and negative assurance letter of BurnetXxxxxx LLP (“Cooley”), Xxxxxxxxx & Xxxxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, each dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit A. Representatives. Such opinion and negative assurance letter shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers Representatives shall have received on the Closing Date an opinion and negative assurance letter of XxxxXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, WeissProfessional Corporation (“WSGR”), Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the GuarantorsInitial Purchasers, each dated the Closing Date, in a form and substance satisfactory to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinRepresentatives.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers Representatives shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, PricewaterhouseCoopers LLP, an independent registered public accountants for the Trust and its subsidiariesaccounting firm, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof.
(f) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and certain shareholders, officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a lettercertificate of the principal financial officer of the Company, dated with respect to certain financial information of the date hereof Company, in form and substance satisfactory to the Representatives.
(h) An application for the listing of the Underlying Securities shall have been submitted to The Nasdaq Global Market (“Nasdaq”) and the Underlying Securities shall have been approved for listing on Nasdaq, subject to official notice of issuance.
(i) On or prior to the Closing Date, the Company shall have furnished to the Representatives such further certificates and documents as the case Representatives may bereasonably request.
(j) The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Xxxxxx LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to substantially the same effect as the opinion required by Section 5(c) hereof;
(iii) an opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche PricewaterhouseCoopers LLP, an independent registered public accountants for Storm Energy Ltd ("Storm") containing statements accounting firm, substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(e) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.;
(hv) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a lettercertificate, dated the date hereof or Option Closing Date and signed by the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information principal financial officer of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided Company, confirming that the letter certificate delivered on the Closing Date shall use a "cut-off date" not more than three business days prior pursuant to Section 5(g) hereof remains true and correct as of such Option Closing Date; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company, the due authorization, execution and authentication and issuance of the Additional Securities to be sold on such Option Closing Date.
(i) Prior Date and other matters related to the Closing Date, (i) the Company execution and the Trust shall have entered into an Amended authentication and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserissuance of such Additional Securities.
Appears in 2 contracts
Samples: Convertible Senior Notes Purchase Agreement (MongoDB, Inc.), Purchase Agreement (MongoDB, Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the several Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Company and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution The Initial Purchasers shall have received (i) an opinion and delivery of this Agreement and prior to negative assurance statement, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook Counsel for the Company or Company, the Guarantors by any "nationally recognized statistical rating organization," form of which is attached as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
Exhibit A, and (ii) there shall not have occurred any changean opinion, or any development involving a prospective changedated the Closing Date, in of Xxxxx X. Xxxxxxxx, Esq., internal counsel for the conditionCompany, financial or otherwise, or in the earnings, business or operations form of the Trust and its subsidiaries, taken which is attached as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.Exhibit B.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel Counsel for the Initial Purchasers, dated the Closing Date, with respect to the effect set forth in Exhibit C.issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters.
(fc) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from KPMG, Ernst & Young LLP, an independent registered public accountants for the Trust and its subsidiariesaccounting firm, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the historical consolidated financial statements and certain financial information contained of the Company included in each or incorporated by reference into the Offering Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" not more than ” within three business days prior of the date of such letter. References to the Closing DateOffering Memorandum and the Final Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(gd) (i) None of the Company nor any of its Subsidiaries, shall have sustained, since the date of the latest audited historical consolidated financial statements included or incorporated by reference in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the capital stock or long-term debt of the Company and its Subsidiaries, considered as one enterprise, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, earnings, financial condition, results of operations or management of the Company and its Subsidiaries, considered as one enterprise, whether or not in the ordinary course of business, otherwise than as set forth in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the terms and in the manner described in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers shall have received on each of the date hereof and certificates dated the Closing Date a letterand in form and substance reasonably satisfactory to the Initial Purchasers, dated of (i) the date hereof or Chief Executive Officer and the Chief Financial Officer of the Company and (ii) each Guarantor: as to the accuracy of the representations and warranties of the Company and the Guarantors in this Agreement at and as of the Closing Date; that the Company and or the applicable Guarantor(s), as the case may be, in form have performed all covenants and substance satisfactory agreements and satisfied all conditions on its or their part to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d) (in the case of the certificate from the Company’s officers only).
(f) The Notes shall have received initial ratings by Standard & Poor’s and Moody’s, and, subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Section 3(a)(62) under the Exchange Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Notes or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through the Common Depositary, Euroclear and Clearstream.
(h) The On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received on each of such further certificates, documents or other information as they may have reasonably requested from the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing DateCompany.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 2 contracts
Samples: Purchase Agreement (Belden Inc.), Purchase Agreement (Belden Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in or contemplated by the Final Time of Sale Memorandum provided to prospective purchasers as of the Securities date of this Agreement that, in your the Initial Purchasers’ judgment, is material and adverse and that makes it, in your the Initial Purchasers’ judgment, impracticable to market proceed with the offering, sale and delivery of the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that that, to such officer’s knowledge after due inquiry, the representations and warranties of each of the Issuer and the Company and the Guarantors contained in this Agreement that are qualified as to materiality or material adverse effect are true and correct, and those not so qualified are true and correct in all material respects, as of the Closing Date such date; and that each of the Company Issuer and the Guarantors Company has complied in all material respects with all of the agreements and has satisfied in all material respects all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threateneddate.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxx & Xxxxxx LLPP.C., Canadian outside U.S. counsel for the Company Issuer and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. B-1 and a disclosure letter of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., dated the Closing Date, to the effect set forth in Exhibit B-2. Such opinion and letter shall be rendered to the Initial Purchasers at the request of the Company Issuer and the Guarantors Company and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx(x) Xxxxxx and Calder, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. outside Cayman Islands counsel for the Company and the GuarantorsIssuer, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered C, (y) Xxxxxx Xxx, outside Irish counsel for the Company, dated the Closing Date, to the Initial Purchasers at effect set forth in Exhibit D, and (z) Xxxxxxxxx X. Xxxxxxxx, Senior Vice President, Chief Legal Officer and Company Secretary, dated the request of Closing Date to the Company and the Guarantors and shall so state therein.effect set forth in Exhibit E.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Xxxxx Xxxx & Sterling Xxxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, and a disclosure letter of Xxxxx Xxxx & Xxxxxxxx LLP, dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit C.Initial Purchasers.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, Ernst & Young LLP, independent registered public accountants for the Trust and its subsidiariesaccounting firm, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than the date that is three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 2 contracts
Samples: Purchase Agreement (Seagate Technology PLC), Purchase Agreement (Seagate Technology PLC)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) (a) neither the Company nor any of its subsidiaries, shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Time of Sale Memorandum 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, otherwise than as set forth or contemplated in the Time of Sale Memorandum, and (b) since the respective dates as of which information is given in the Time of Sale Memorandum there shall not have occurred been any downgradingchange in the capital stock (other than (1) the issuance by the Company of shares of Common Stock upon the exercise or settlement (including any “net” or “cashless” exercises or settlements) of stock options that are outstanding on the date hereof and described in the Time of Sale Memorandum, nor shall (2) the issuance by the Company of shares of capital stock upon the exercise of warrants outstanding on the date hereof and described in the Time of Sale Memorandum, and (3) the issuance by the Company of Common Stock or any notice have been given securities convertible into, exchangeable for or that represent the right to receive shares of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changeCommon Stock, in each case pursuant to the rating accorded Company’s equity incentive plans described in the Company Time of Sale Memorandum) or any of the Guarantors or any of the securities long-term debt of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in or affecting the conditiongeneral affairs, management, financial position, stockholders’ equity or otherwise, or in the earnings, business or results of operations of the Trust Company and its subsidiaries, taken as a whole, from that otherwise than as set forth or contemplated in the Final Memorandum provided to prospective purchasers Time of Sale Memorandum, the Securities thateffect of which, in your judgmentany such case described in clause (a) or (b), is in your judgment so material and adverse and that makes it, as to make it in your judgment, judgment impracticable or inadvisable to market proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum;
(ii) (a) no downgrading shall have occurred in the rating accorded the Company’s debt securities, if any, by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (b) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities, if any; and
(iii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or on NASDAQ; (b) a suspension or material limitation in trading in the Company’s securities on NASDAQ; (c) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (d) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (e) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (d) or (e) is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed on behalf of the Company by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i5(a)(i)(ii) and (iii) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of BurnetXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxx & Xxxxxx LLPProfessional Corporation, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinRepresentatives.
(d) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxx & Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the GuarantorsInitial Purchasers, dated the Closing Date, in form and substance satisfactory to the effect set forth Representatives. With respect to Section 5(c) above, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, and with respect to Section 5(d) above, Xxxxxx & Xxxxxxx LLP may state that their opinions and beliefs are based upon their participation in Exhibit B. Such the preparation of the Time of Sale Memorandum, the Final Memorandum and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion and negative assurance letter of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation described in Section 5(c) above shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersRepresentatives, from KPMGPricewaterhouseCoopers, LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters Initial Purchasers with respect to the financial statements of the Company, and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date with respect to the Company shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(gf) The Initial Purchasers shall have received received, on each of the date hereof and the Closing Date Date, a lettercertificate signed by the Chief Financial Officer of the Company, dated respectively as of the date hereof or and as of the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersRepresentatives.
(g) The “lock-up” agreements, from Deloitte & Touche LLPeach substantially in the form of Exhibit A hereto, independent public accountants for Storm Energy Ltd ("Storm") containing statements between you and information the executive officers and directors of the type ordinarily included in accountants' "comfort letters" Company relating to underwriters with respect to the financial statements sales and certain financial information contained other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in each Memorandum; provided that the letter delivered full force and effect on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(i) A “Listing of Additional Shares Notification” shall have been submitted to The Nasdaq Stock Market LLC (“Nasdaq”) and Nasdaq shall have completed its review of such submission.
(j) The several obligations of the Initial Purchasers shall have received to purchase Additional Securities hereunder are subject to the delivery to you on each the applicable Option Closing Date of the date hereof following:
(i) a certificate, dated the Option Closing Date and signed on behalf of the Company by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) a lettercertificate, dated the date hereof or Option Closing Date and signed by the Chief Financial Officer of the Company, substantially in the same form and substance as the certificate furnished to the Initial Purchasers pursuant to Section 5(f) hereof;
(iii) an opinion and negative assurance letter of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion and negative assurance letter required by Section 5(c) hereof;
(iv) an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(d) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana")accountants, containing statements substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(e) hereof to be delivered on the Closing Date; provided that the such letter to be delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.; and
(ivi) Prior such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization, execution and authentication of the Additional Securities to be sold on such Option Closing Date, (i) the Company Date and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory other matters related to the Initial Purchaser execution and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserauthentication of such Additional Securities.
Appears in 2 contracts
Samples: Purchase Agreement (Blackline, Inc.), Purchase Agreement (Blackline, Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall the Company have received any notice have been given from any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Act of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities ActCompany; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities Disclosure Package that, in your judgmentthe judgment of the Representatives, is material and adverse and that makes it, in your judgmentthe judgment of the Representatives, impracticable or inadvisable to proceed with the offer, sale and delivery of the securities, or market the Securities on the terms and in the manner contemplated in the Final Memorandumthis agreement and the Disclosure Package.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement that are not qualified by materiality are true and correct in all material respects, and that the representations and warranties of the Company contained in this Agreement that are qualified by materiality are true and correct, in each case, as of the Closing Date Date, and that each of the Company and the Guarantors has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion and a negative assurance letter of Burnet, Xxxxxxxxx Xxxxxxxx & Xxxxxx Xxxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to on Schedule III. Additionally, Xxxxxxx Xxxxxxxx, General Counsel of the Initial Purchasers at the request Company, and other local counsel of the Company and shall provide opinions, dated the Guarantors and Closing Date, as the Representatives shall so state thereinreasonably request.
(d) The Initial Purchasers shall have received on the Closing Date an opinion and a negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxx & Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit C.Initial Purchasers.
(fe) The Initial Purchasers shall have received received, on each of the date hereof and the Closing Date Date, a letter, letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, KPMG LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters Initial Purchasers with respect to the financial statements and certain financial information contained in each the Disclosure Package and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Datehereof.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 2 contracts
Samples: Purchase Agreement (NRG Energy, Inc.), Purchase Agreement (NRG Energy, Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Guarantors, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has have complied in all material respects with all of the agreements and satisfied all of the conditions on its their part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx Xxxxxxxx & Xxxxxx Xxxxx LLP, Canadian outside counsel for the Company and the Guarantors, dated the Closing Date, to in the effect set forth in form provided by Xxxxxxxx & Xxxxx LLP and attached hereto as Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx King & Xxxxxxxx Spalding LLP, U.S. federal regulatory counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Xxxxxx & Sterling Xxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit C.Representative.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, KPMG LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information a certificate of the type ordinarily included Chief Financial Officer of the Company.
(h) The “lock-up” agreements, each substantially in accountants' "comfort letters" to underwriters with respect to the financial statements form of Exhibit D hereto, between you and certain financial information contained shareholders, officers and directors of the Company relating to sales and certain other dispositions of shares of Class A common stock or certain other securities, delivered to you on or before the date hereof, shall be in each Memorandum; provided that the letter delivered full force and effect on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(hi) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof On or prior to the Closing Date, the Registration Rights Agreement and the amendment to the credit facility of NRG Yield Operating LLC shall have been executed and the Company shall have provided the Initial Purchasers execution copies thereof.
(j) The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company and the Guarantors, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Xxxxxxxx & Xxxxx LLP, outside counsel for the Company and the Guarantors, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion required by Section 5(c) hereof;
(iii) an opinion of King & Spalding LLP, federal regulatory counsel for the Company and the Guarantors, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) an opinion of Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, KPMG LLP, independent public accountants for EnCana Corporation ("EnCana")accountants, containing statements substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(f) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.;
(ivi) Prior to a certificate dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from the Chief Financial Officer of the Company, substantially in the same form and substance as the letter furnished to the Initial Purchasers pursuant to Section 5(g) hereof; and
(ivii) such other documents as you may reasonably request with respect to the good standing of the Company and the Trust shall have entered into an Amended Guarantors, the due authorization, execution and Restated Net Profit Interest Agreement that is reasonably satisfactory authentication of the Additional Securities to be sold on such Option Closing Date and other matters related to the Initial Purchaser execution and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserauthentication of such Additional Securities.
Appears in 2 contracts
Samples: Purchase Agreement (NRG Yield, Inc.), Purchase Agreement (NRG Yield, Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors its subsidiaries by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to prospective purchasers of the Securities that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) above and to the effect that (i) the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date with the same effect as if made on such delivery date, and that each of (ii) the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance statement of BurnetXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxx & Xxxxxx LLPProfessional Corporation, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance statement of Xxxx, Weiss, Rifkind, Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit C.Representatives.
(fe) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMGErnst & Young, LLP, independent registered public accountants for the Trust and its subsidiariesCompany, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof.
(f) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between the Representatives and each of the officers and directors of the Company and the other parties named in Schedule II hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(g) The Maximum Number of Underlying Securities have been approved for listing, subject to notice of issuance, on The Nasdaq Global Select Market (the “Nasdaq”), and evidence thereof shall have been provided to the Representatives.
(h) The several obligations of the Initial Purchasers shall have received to purchase Additional Securities hereunder are subject to the delivery to the Representatives on each the applicable Option Closing Date of such documents, not inconsistent with the foregoing, as the Representatives may reasonably request.
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the date hereof and Company, confirming that the certificate delivered on the Closing Date a letterpursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance statement of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, outside counsel for the Company, dated the date hereof or the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion required by Section 5(c) hereof;
(iii) an opinion and negative assurance statement of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from Deloitte Ernst & Touche Young LLP, independent registered public accountants for Storm Energy Ltd ("Storm") containing statements the Company, substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(e) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.; and
(hv) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, such other documents as the case you may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters reasonably request with respect to the financial statements good standing of the Company, the due authorization and certain financial information contained in each Memorandum; provided that issuance of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateissuance of such Additional Securities.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 2 contracts
Samples: Purchase Agreement (Infinera Corp), Purchase Agreement (INFINERA Corp)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors Company’s or any of the Guarantor’s securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Parent, the Company and its subsidiariesthe Subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided (exclusive of any amendments or supplements thereto subsequent to prospective purchasers the date of the Securities this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorseach Guarantor, dated the Closing Date and signed by an executive officer, trustee officer of the Company or managing partnersuch Guarantor, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of each of the Company and the Guarantors or such Guarantor, as applicable, contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors or such Guarantor, as applicable, has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetXxxxxxxx Xxxxxx, Xxxxxxxxx & Xxxxxx LLP, Canadian special counsel for the Company and the GuarantorsParent, dated the Closing Date, to in the effect form set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.A.
(d) The Initial Purchasers shall have received on the Closing Date an opinion the opinions of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. special foreign counsel for the Company Parent in Argentina, Brazil, Chile, Mexico and the GuarantorsPeru, dated the Closing Date, to in the effect respective forms set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company Exhibits X-0, X-0, X-0, X-0 and the Guarantors and shall so state thereinB-5.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C..
(f) The Initial Purchasers shall have received received, on each of the date hereof and the Closing Date Date, a letter, letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, PricewaterhouseCoopers LLP, independent registered public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained and incorporated by reference in each the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days the date hereof.
(g) At or prior to the Closing Date.
(g) The , the Company, the Guarantors and the Trustee shall have executed and delivered the Indenture, and the Company, the Guarantors and the Initial Purchasers shall have received on each executed and delivered the Registration Rights Agreement in the form of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing DateExhibit D hereto.
(h) The Initial Purchasers shall have received on each from the Chief Executive Officer and the Vice President and Treasurer of the date hereof and the Closing Date Parent a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersPurchasers and dated the date hereof, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" relating to underwriters with respect to the financial statements and certain financial information contained included or incorporated by reference in each Memorandum; provided the Time of Sale Memorandum that is not covered in the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date“comfort letters” referenced in 5(f) above.
(i) Prior to Counsel for the Closing Date, (i) the Company and the Trust Initial Purchasers shall have entered into an Amended been furnished with such documents as they may reasonably require for the purpose of enabling them to pass upon the issuance and Restated Net Profit Interest Agreement that is reasonably satisfactory sale of the Securities herein contemplated, or in order to evidence the Initial Purchaser and (ii) Harvest Sask Energy Trust and accuracy of any of the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to representations or warranties or the Initial Purchaserfulfillment of any of the conditions herein contained.
Appears in 2 contracts
Samples: Purchase Agreement (Nii Holdings Inc), Purchase Agreement (Nii Holdings Inc)
Conditions to the Initial Purchasers’ Obligations. The obligations of the Company to sell the Securities to the Initial Purchasers and the several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) All of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date hereof and the Applicable Time, and shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Closing Date. The Company shall have performed or complied in all material respects with all of the agreements contained herein and required to be performed or complied with by it at or prior to the Closing Date.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Memorandum and the Final Offering Memorandum provided to prospective purchasers (exclusive of the Securities any amendment or supplement thereto) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Memorandum and the Final Offering Memorandum.
(bc) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company chief executive officer and the Subsidiary Guarantors chief financial officer of the Company, to the effect set forth in Section 5(a)(i5(b) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The Each of the officers signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion or opinions of Xxxx, Weiss, Rifkind, Xxxxxxxxx Xxxxxxxx Xxxx Xxxxxxx & Xxxxxxxx LLP, U.S. outside counsel for the Company and the Guarantors, dated the Closing DateCompany, to the effect set forth in Exhibit B. A-1, and an opinion of Xxxxxx Xxxxxxxx, Esq., Secretary and General Counsel of the Company, to the effect set forth in Exhibit A-2, in each case dated as of the Closing Date. Such opinion opinions shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Xxxxxxxx & Sterling LLP, U.S. counsel for the Initial Purchasers, and an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Initial Purchasers, in each case dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit C.Initial Purchasers.
(f) The Initial Purchasers shall have received received, on each of the date hereof and the Closing Date Date, a letter, letter dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers, from KPMG, Ernst & Young LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters Initial Purchasers with respect to the financial statements and certain financial information relating to the Company, contained in or incorporated by reference into each Offering Document and the Time of Sale Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-“cut off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(g) The Initial Purchasers shall have received on “lock-up” agreements, each substantially in the form of Exhibit B hereto, between you and all of the date hereof executive officers and directors of the Closing Date a letterCompany listed on Schedule III hereto relating to sales and other dispositions of shares of Common Stock or certain other securities, dated delivered to you on or before the date hereof or the Closing Datehereof, as the case may be, shall be in form full force and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered effect on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers Representatives shall have received such other documents and certificates as are reasonably requested by you or counsel for the Initial Purchasers. The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of each of the date hereof and documents referred to above dated as of the Option Closing Date a letter(except that insofar as any documents relate to Securities, dated the date hereof or the Closing Date, as the case they may be, in form and substance satisfactory be limited to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"covering only Additional Securities), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 2 contracts
Samples: Purchase Agreement (Headwaters Inc), Purchase Agreement (Headwaters Inc)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) Date there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers Representatives shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and Company, to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Representatives shall have received on the Closing Date an opinion and negative assurance letter of Burnet, Xxxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx LLPProfessional Corporation, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit A. you. Such opinion and negative assurance letter shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx Procter LLP, U.S. counsel for the Company and the Guarantors, each dated the Closing Date, Date and in form and substance satisfactory to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinRepresentatives.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, KPMG LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(gf) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, certificate of the principal financial officer of the Company dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") Purchasers containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained included or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum;
(g) The “lock-up” agreements, each substantially in each Memorandum; provided that the letter form of Exhibit A hereto, between the Representatives and the officers and directors of the Company for purposes of Section 16 of the Exchange Act relating to restrictions on sales and certain other dispositions of shares of Class A Common Stock or certain other securities, delivered to the Representatives on or before the Closing Date date hereof, shall use a "cut-off date" not more than three business days prior to be in full force and effect on the Closing Date.
(h) The several obligations of the Initial Purchasers shall have received to purchase Additional Securities hereunder are subject to the following conditions, and/or delivery to the Representatives on each the applicable Option Closing Date of the date hereof following:
(i) subsequent to the execution and delivery of this Agreement and prior to the applicable Option Closing Date there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Memorandum;
(ii) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date a letterpursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(iii) an opinion and negative assurance letter of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx Professional Corporation, outside counsel for the Company, dated the date hereof or the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion and negative assurance letter required by Section 5(c) hereof;
(iv) an opinion and negative assurance letter of Xxxxxxx Procter LLP, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(d) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, KPMG LLP, independent public accountants for EnCana Corporation ("EnCana")accountants, containing statements substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(e) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date;
(vi) a certificate of the principal financial officer of the Company dated the Option Closing Date, to the same effect as the certificate required by Section 5(f) hereof; and
(vii) such other documents as the Representatives may reasonably request with respect to the good standing of the Company, the due authorization, execution and authentication of the Additional Securities to be sold on such Option Closing Date and other matters related to the execution and authentication of such Additional Securities.
(i) Prior A number of shares of Class A Common Stock equal to the Closing Date, (i) sum of the Company and the Trust Maximum Number of Underlying Securities shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory been approved for listing on the New York Stock Exchange, subject to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserofficial notice of issuance.
Appears in 2 contracts
Samples: Purchase Agreement (RingCentral, Inc.), Purchase Agreement (RingCentral, Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Company in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
The Initial Purchaser shall have received (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, of Mayer, Brown, Rxxx & Maw LLP, counsel for the Company, in form and substance satisfactory to the Initial Purchaser, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinB hereto.
(db) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantorsopinion, dated the Closing Date, of Cxxxxx Xxxxxx & Rxxxxxx LLP, Counsel for the Initial Purchaser, with respect to the effect set forth in Exhibit B. Such opinion shall be rendered to issuance and sale of the Notes and such other related matters as the Initial Purchasers at the request of Purchaser may reasonably require, and the Company and shall have furnished to such counsel such documents as it may reasonably request for the Guarantors and shall so state thereinpurpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Mxxxx Xxxxx, Rxxx & Maw LLP referred to in Section 6(a).
(ec) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers Purchaser shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersPurchaser and Counsel for the Initial Purchaser, from KPMG, Deloitte & Touche LLP, independent public accountants auditors of the Company, and from PricewaterhouseCoopers LLP, independent auditors for the Trust and its subsidiariesCxxxxxxxxxx, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not more than three business days prior contained in the Preliminary Memorandum. References to the Closing DateOffering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(gi) None of the Company, Cxxxxxxxxxx nor any Guarantor, shall have sustained, since the date of the latest audited financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, there shall not have been any change in the long-term debt of the Company, Cxxxxxxxxxx or any Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company, Cxxxxxxxxxx or any Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers Purchaser shall have received on each of the date hereof and a certificate, dated the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, and in form and substance satisfactory to the Initial PurchasersPurchaser, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Chief Executive Officer and the Chief Financial Officer of the Company as to the financial statements accuracy of the representations and certain financial information contained warranties of the Company in each Memorandumthis Agreement at and as of the Closing Date; provided that the letter delivered Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date Date; and as to the matters set forth in Sections 6(d) and (e).
(f) There shall use a "cut-off date" not more than three business days prior to have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall have been designated for trading on PORTAL.
(h) The Notes shall be eligible for clearance and settlement through The Depository Trust Company (“DTC”), and Clearstream Banking and the Euroclear System as indirect participants of DTC.
(i) On or before the Closing Date, the Initial Purchaser and Counsel for the Initial Purchaser shall have received such further certificates, documents or other information as they may have reasonably requested from the Company or Cxxxxxxxxxx.
(j) The acquisition of Cxxxxxxxxxx shall have been consummated simultaneously on the Closing Date.
(hk) The Initial Purchasers shall have received on each of the date hereof Company’s Revolving Credit Facility has been executed by all parties and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, is in form full force and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Dateeffect.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Underwritten Securities as provided herein on the Closing Date or the Option Securities on each Additional Closing Date, as the case may be, are subject to the satisfaction or waiver, as determined by the Representatives in their sole discretion of the following conditionsconditions precedent on or prior to the Closing Date or each Additional Closing Date, as the case may be:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or each Additional Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate as the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) case may be there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your the Representatives’ judgment, is material and adverse and that makes it, in your Representatives’ judgment, impracticable or inadvisable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Time of Sale and on and as of the Closing Date or each Additional Closing Date, as the case may be, as if made on and as of such date; the statements of the Company’s officer made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date or each Additional Closing Date, as the case may be; the Company shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date or each Additional Closing Date, as the case may be.
(c) The Initial Purchasers shall have received on the Closing Date and on each Additional Closing Date, as the case may be, a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date such date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors Chief Financial Officer to the effect set forth in Section 5(a)(i) 5(d), and further to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement were true and correct as of the Time of Sale and are true and correct as of the Closing Date and or each Additional Closing Date, as the case may be; that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date or each Additional Closing Date. The officers signing , as the case may be; and delivering such certificates may rely upon that the best sale of his the Securities has not been enjoined (temporarily or her knowledge as to proceedings threatenedpermanently).
(cd) The Initial Purchasers shall have received on the Closing Date an opinion and on each Additional Closing Date, as the case may be, the a written certificate dated such date and executed by the Chief Financial Officer of Burnetthe Company, Xxxxxxxxx & Xxxxxx LLPwhich shall contain statements and information of the type ordinarily included in a “CFO certificate,” providing “management comfort” with request to certain financial information contained in the Time of Sale Memorandum and the Final Memorandum, Canadian in form and substance reasonably satisfactory to counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinPurchasers.
(e) The Initial Purchasers shall have received on the Closing Date and on each Additional Closing Date, as the case may be, (i) an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, outside counsel for the Company, dated the Closing Date or each Additional Closing Date, as the case may be, to the effect set forth in Exhibit A and (ii) an opinion of Shearman Xxxxxxxxx Xxxxxxx, P.A, outside Florida counsel for the Company, dated the Closing Date or each Additional Closing Date, as the case may be, to the effect set forth in Exhibit B. Such opinions and letter shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(f) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxx, Arps, Slate, Xxxxxxx & Sterling Xxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, with respect to such matters as may be reasonably requested by the effect set forth in Exhibit C.Initial Purchasers.
(fg) The On the date hereof, the Initial Purchasers shall have received on each of from PricewaterhouseCoopers LLP, the date hereof and independent registered public accounting firm for the Closing Date Company, a “comfort letter, ” dated the date hereof or addressed to the Initial Purchasers, in form and substance satisfactory to the Representatives, covering the financial information in the Time of Sale Memorandum and other customary matters. In addition, on the Closing Date and on each Additional Closing Date, as the case may be, the Initial Purchasers shall have received from such accountants a “bring-down comfort letter” dated such date addressed to the Initial Purchasers, in form and substance satisfactory to the Representatives, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial information in the Final Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 3 days prior to the Closing Date or the Additional Closing Date, as the case may be.
(h) The Company shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for and the Trust and its subsidiaries, containing statements and information Initial Purchasers shall have received executed copies thereof.
(i) The sale of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered Securities shall not be enjoined (temporarily or permanently) on the Closing Date or on each Additional Closing Date, as the case may be.
(j) An application for the listing of the Maximum Number of Underlying Securities shall use a "cuthave been submitted to the New York Stock Exchange, and the Maximum Number of Underlying Securities shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
(k) The “lock-off date" not more than three business days prior up” agreements, each substantially in the form of Exhibit C hereto, between the Representatives and officers and directors of the Company relating to restrictions on sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(gl) The Initial Purchasers shall have received on each of the date hereof and On or before the Closing Date a letter, dated the date hereof or the and each Additional Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants Purchasers and counsel for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each such information, documents, letters and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the date hereof Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date a letter, dated the date hereof or the each Additional Closing Date, as the case may be, in form and substance satisfactory which termination shall be without liability on the part of any party to the Initial Purchasersany other party, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"except that Sections 6(g), containing statements 8 and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements 11 hereof shall at all times be effective and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Datesurvive such termination.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the several Initial Purchasers to purchase and pay for the Securities Notes and related Guarantees on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there There shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for downgrading, below Ba2(Negative) from Xxxxx’x Investors Service, Inc., BBB-(Negative) from Standard and Poor’s Ratings Services, a possible change that does not indicate the direction division of the possible changeXxXxxx-Xxxx Companies, Inc. and BBB (Negative) from Fitch Inc., in the senior unsecured rating accorded the Company or any of the Guarantors Guarantor or any of the Company’s or the Guarantor’s senior unsecured securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors Guarantor by any "“nationally recognized statistical rating organization," ” as such that term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there There shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwiseposition, or in the earnings, business or operations of the Trust Guarantor and its subsidiaries, taken as a whole, from that set forth in the Final Offering Memorandum provided (exclusive of any amendments or supplements thereto subsequent to prospective purchasers the date of the Securities this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Offering Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, officer of each of the Company Company, with respect to the Company, and the Subsidiary Guarantors Guarantor, with respect to the Guarantor, to the effect set forth in Section 5(a)(i5(a) and to the effect that the representations and warranties of each of the Company and the Guarantors Guarantor contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors Guarantor has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Company and the Guarantor shall have furnished to the Initial Purchasers the opinion of Xxxxx Xxxxxx, Vice President and General Counsel of the Company, dated the Closing Date, substantially to the effect set forth on Annex 5(c) hereto. In giving such opinion, such counsel may rely as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company or the Guarantor and the Significant Subsidiaries and of public officials. Such opinion may be relied upon only by the Initial Purchasers in connection with the transactions contemplated by this Agreement, and may not be used or relied upon by the Initial Purchasers for any other purpose, or by any other person, firm, corporation or entity for any purpose whatsoever, without the prior written consent of such counsel. Such opinion may be limited to the laws of the State of Texas and the corporation, limited partnership and limited liability company statutes of the State of Delaware.
(d) The Company and the Guarantor shall have received on furnished to the Closing Date an Initial Purchasers the opinion of BurnetMilbank, Xxxxxxxxx Tweed, Xxxxxx & Xxxxxx LLPXxXxxx LLP (“MTHM”), Canadian special United States counsel for the Company and the GuarantorsGuarantor, dated the Closing Date, substantially to the effect set forth in Exhibit A. on Annex 5(d)-1 hereto. In rendering their opinions pursuant to this Section 5(d), such counsel may rely, to the extent deemed advisable by such counsel, (i) as to factual matters on certificates of officers of the Company or the Guarantor and (ii) upon certificates of public officials. Such opinion shall be rendered limited to the laws of the State of New York, the Federal laws of the United States and the General Corporation Law of the State of Delaware. In addition, the Company shall have furnished to the Initial Purchasers at the request negative assurance letter of MTHM dated the Closing Date, substantially to the effect set forth on Annex 5(d)-2. Such opinion and negative assurance letter shall be rendered as of the Closing Date only in connection with this Agreement and will be solely for the benefit of the Initial Purchasers, and may not be relied upon, nor shown to or quoted from, for any other purpose, or to any other person, firm or corporation.
(e) The Company and the Guarantors and Guarantor shall so state therein.
(d) The have furnished to the Initial Purchasers shall have received on the Closing Date an opinion of XxxxXxxxxxx Xxxx & Xxxxxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. special counsel for the Company and the GuarantorsGuarantor, dated the Closing Date, in the form set forth on Annex 5(e) hereto. Such opinion shall be limited to the effect set forth in Exhibit B. laws of Bermuda. Such opinion shall be rendered to the Initial Purchasers at the request as of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion only in connection with the Agreement and will be solely for the benefit of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Dateand may not be relied upon, nor shown to the effect set forth in Exhibit C.or quoted from, for any other purpose, or to any other person, firm or corporation.
(f) The Initial Purchasers shall have received on each from Xxxxxx & Xxxxxx L.L.P., counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Disclosure Package, the Final Offering Memorandum and other related matters as the Initial Purchasers may reasonably require, and the Company and the Guarantor shall have furnished to such counsel such documents as such counsel reasonably requests for the purpose of enabling such counsel to pass upon such matters.
(g) The Initial Purchasers shall have received on the date hereof of the Applicable Time and on the Closing Date a letterletters, dated the date hereof or of the Applicable Time and Closing Date, as the case may berespectively, in form and substance satisfactory to the Initial Purchasers, from KPMG, PricewaterhouseCoopers LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into each Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of from the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Datehereof.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the satisfaction or waiver, as determined by the Representatives in their sole discretion of the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i5(a) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion (i) opinions and (ii) a negative assurance letter of BurnetDLA Piper LLP (US), Xxxxxxxxx & Xxxxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A. you. Such opinion opinions shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date (i) an opinion and (ii) a negative assurance letter of XxxxXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, WeissProfessional Corporation, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit C.you.
(fe) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, each of (i) Ernst & Young LLP, independent public accountants for the Trust accountants, and its subsidiaries(ii) BDO USA LLP, independent public accountants, in each case containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter letters delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(gf) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a lettercertificate, dated the date hereof or the Closing Date, as the case may be, in form of the principal financial officer and substance satisfactory principal accounting officer of the Company, with respect to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements certain financial and operating information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Company, to the financial statements effect set forth in Exhibit B hereto.
(g) An application for the listing of the Underlying Securities shall have been submitted to The New York Stock Exchange (the “Exchange”), and the Underlying Securities shall have been approved for listing on the Exchange, subject to official notice of issuance.
(h) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and certain financial information contained stockholders, officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in each Memorandum; provided that the letter delivered full force and effect on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(hi) The Company shall have delivered to each Initial Purchaser (or its agent), on the date hereof, a properly completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the Company undertakes to provide such additional supporting documentation as each Initial Purchaser may reasonably request in connection with the verification of the foregoing certification.
(j) The several obligations of the Initial Purchasers shall have received to purchase Additional Securities hereunder are subject to the delivery to you on each the applicable Option Closing Date of the date hereof following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date a letterpursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) (A) opinions and (B) negative assurance letter of DLA Piper LLP (US), outside counsel for the Company, dated the date hereof or the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinions and negative assurance letter required by Section 5(c) hereof;
(iii) (A) an opinion and (B) negative assurance letter of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, Ernst & Young LLP, independent public accountants for EnCana Corporation ("EnCana")accountants, containing statements substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(e) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.;
(iv) Prior to a certificate, dated the Option Closing Date, (i) of the Company principal financial officer and principal accounting officer of the Trust shall have entered into an Amended Company, with respect to certain financial and Restated Net Profit Interest Agreement that is reasonably satisfactory operating information of the Company, to the Initial Purchaser and effect set forth in Exhibit B hereto; and
(iivi) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is such other documents as you may reasonably satisfactory request with respect to the Initial Purchasergood standing of the Company, the due authorization and issuance of the Additional Securities to be sold on such Option Closing Date and other matters related to the issuance of such Additional Securities.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the several Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Issuers and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Issuers’ and Guarantors’ officers made pursuant to the provisions hereof, to the performance by the Issuers of their covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution The Initial Purchasers shall have received an opinion and delivery of this Agreement and prior to 10b-5 statement, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review Xxxxxx and Xxxxx, LLP, counsel for a possible change that does not indicate the direction of the possible changeIssuers, in form and substance satisfactory to the rating accorded Initial Purchasers, to the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that effect set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final MemorandumExhibit A hereto.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors10b-5 statement, dated the Closing Date, to of the effect set forth in Exhibit A. Such opinion shall be rendered to Counsel for the Initial Purchasers at with respect to the request issuance and sale of the Company Notes and such other related matters as the Initial Purchasers may reasonably require, and the Guarantors and Issuers shall so state thereinhave furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(fc) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from KPMG, UHY LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided that the letter delivered on the Closing Date letters shall use a "“cut-off date" ” within three days of the date of such letter and that their procedures, shall extend to financial information in the Final Memorandum not more than three business days prior contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(d) On the date of this Agreement and on the Closing Date, as the case may be, each of X.X. Xxxxx, Von Gonten and Netherland Xxxxxx shall have furnished to the Representative, at the request of the Issuers, reserve report confirmation letters, dated the respective dates of delivery thereof and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Representative, containing statements and information of the type customarily included in such letters to underwriters with respect to the reserve and other operational information contained in the Preliminary Offering Memorandum, the Offering Memorandum and the Final Offering Memorandum.
(e) (i) None of Partnership nor any of its subsidiaries, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto), any material loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth or incorporated by reference in the Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum and the Offering Memorandum, there shall not have been any material change in the capital stock or material increase in the long-term debt of Partnership and its subsidiaries, or any material change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, stockholders’ equity, earnings, condition (financial or otherwise), results of operations or management of Partnership and its subsidiaries, whether or not in the ordinary course of business, otherwise than as set forth or incorporated by reference in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto).
(f) None of the information set forth in the sections of the Offering Memorandum entitled “Use of Proceeds” and “Description of Certain Indebtedness” shall have materially changed, nor shall there have been any material change in the information with respect to the directors and officers of the Issuers from what is incorporated by reference in the Offering Memorandum, if the effect of any such change, individually or in the aggregate, in the sole judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described in the Offering Memorandum, exclusive of any amendment or supplement thereto.
(g) The Initial Purchasers shall have received on each of the date hereof and a certificate, dated the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, and in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Chief Executive Officer and the Chief Financial Officer of General Partner as to the financial statements accuracy of the representations and certain financial information contained warranties of the Issuers and the Guarantors in each Memorandumthis Agreement at and as of the Closing Date; provided that the letter delivered Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on the Closing Date shall use a "cut-off date" not more than three business days their respective parts to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Sections 6(e), (f) and (h).
(h) Subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Issuers’ other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its ratings of the Notes or any of the Issuers’ other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(i) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Notes or the issuance of the Guarantees; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Notes or the issuance of the Guarantees.
(j) The Notes shall be eligible for clearance and settlement through the Depository Trust Company.
(k) The Initial Purchasers shall have received on each a counterpart of the date hereof Registration Rights Agreement that shall have been executed and delivered by a duly authorized officers of the Issuers and the Closing Date a letter, dated the date hereof Guarantors.
(l) On or before the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersPurchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company Issuers and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial PurchaserGuarantors.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities representations and warranties of the Company or any contained herein shall be true and correct on the date hereof and on and as of the Guarantors or in Closing Date; and the rating outlook for statements of the Company or and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities ActClosing Date; and
(ii) there no event or condition of a type described in Section 1(s) hereof shall not have occurred any changeor shall exist, which event or any development involving a prospective change, condition is not described in the condition, financial Time of Sale Memorandum (excluding any amendment or otherwise, or in the earnings, business or operations of the Trust supplement thereto) and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided (excluding any amendment or supplement thereto) and the effect of which in your judgment makes it impracticable or inadvisable to prospective purchasers proceed with the offering, sale or delivery of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market on the Securities Closing Date on the terms and in the manner contemplated in by this Agreement, the Time of Sale Memorandum and the Final Memorandum.
(b) The Initial Purchasers shall have received on and as of the Closing Date a certificate from each of the chief executive officer and one additional senior executive officer of the Company who is reasonably satisfactory to the Initial Purchasers (i) confirming that such officers have carefully reviewed the Time of Sale Memorandum and the GuarantorsFinal Memorandum and, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that knowledge of such officers, the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on in all material respects at or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as prior to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing Date, (ii) to the effect set forth in Exhibit A. Such opinion paragraph (a)(ii) above.
(c) On the date of this Agreement and on the Closing Date, Ernst & Young LLP shall be rendered have furnished to the Initial Purchasers Purchasers, at the request of the Company Company, letters, dated the respective dates of delivery thereof and addressed to the Initial Purchasers, in form and substance reasonably satisfactory to the Initial Purchasers, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Time of Sale Memorandum and the Guarantors and Final Memorandum; provided, that the letter delivered on the Closing Date shall so state thereinuse a “cut-off” date no more than three business days prior to such Closing Date.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx Xxxxxx LLP, U.S. outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, with respect to such matters and in the effect set forth in Exhibit B. form agreed between the Initial Purchasers and the Company. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Xxxxx Xxxx & Sterling Xxxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, with respect to such matters as the effect set forth in Exhibit C.Initial Purchasers may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(f) The Initial Purchasers shall have received on “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and certain officers and directors of the date hereof Company relating to sales and the Closing Date a lettercertain other dispositions of shares of Common Stock or certain other securities, dated delivered to you on or before the date hereof or the Closing Datehereof, as the case may be, shall be in form full force and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered effect on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and or prior to the Closing Date satisfactory evidence of (i) the termination of the Credit Agreement, dated as of April 18, 2013 (as amended from time to time) among the Company, Silicon Valley Bank, as administrative agent, swingline lender and issuing lender, and the other lenders and parties thereto and (ii) the entry into the Loan and Security Agreement, dated as of August 11, 2014, among the Company and Silicon Valley Bank.
(h) An application for the listing of the Maximum Number of Underlying Securities shall have been approved by the NASDAQ Global Select Market, subject to official notice of issuance.
(i) The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a lettercertificate, dated the date hereof or Option Closing Date and signed by the chief executive officer and one additional senior executive officer of the Company who is satisfactory to the Initial Purchasers, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date, as ;
(ii) a letter dated the case may beOption Closing Date, in form and substance satisfactory to the Initial Purchasers, from Deloitte Ernst & Touche Young LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements accountants, substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(c) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.;
(hiii) The Initial Purchasers shall have received on each an opinion of Xxxxxx LLP, outside counsel for the date hereof and the Closing Date a letterCompany, dated the date hereof or the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion required by Section 5(d) hereof;
(iv) an opinion of Xxxxx Xxxx & Xxxxxxxx LLP, in form and substance satisfactory to counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof; and
(v) good standing certificates, or similar documents, for the Company from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation the State of Delaware and the Commonwealth of Massachusetts.
("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters vi) such other documents as you may reasonably request with respect to the financial statements due authorization, execution and certain financial information contained in each Memorandum; provided that authentication and issuance of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateexecution and authentication and issuance of such Additional Securities.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Enernoc Inc)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers Purchaser to purchase and pay for the Firm Securities on the Closing Date are is subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating rating, if any, accorded the Company or any of the Guarantors or any of the Company’s securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Preliminary Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and Company, to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has has, in all material respects, complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Burnet, Xxxxxx Xxxxxx Xxxxxxxxx & Xxxxxx Xxxx and Xxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers Purchaser at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of XxxxXxxxx Xxxx & Xxxxxxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the GuarantorsInitial Purchaser, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.B.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers Purchaser shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial PurchasersPurchaser, from KPMG, PricewaterhouseCoopers LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into each Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof.
(f) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between you and certain of the Section 16 officers and directors of the Company relating to sales and certain other dispositions of shares of common stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(g) . The Initial Purchasers shall have received on each obligations of the date hereof and Initial Purchaser to purchase Additional Securities hereunder are subject to the delivery to you on the applicable Option Closing Date a letter, dated the date hereof or the Closing Date, of such documents as the case you may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters reasonably request with respect to the financial statements good standing of the Company, the due authorization, execution and certain financial information contained in each Memorandum; provided that authentication of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateexecution and authentication of such Additional Securities.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the several Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Company and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution The Initial Purchasers shall have received (i) an opinion and delivery of this Agreement and prior to negative assurance statement, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook Counsel for the Company or Company, the Guarantors by any "nationally recognized statistical rating organization," form of which is attached as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
Exhibit A, and (ii) there shall not have occurred any changean opinion, or any development involving a prospective changedated the Closing Date, in of Xxxxx X. Xxxxxxxx, Esq., general counsel for the conditionCompany, financial or otherwise, or in the earnings, business or operations form of the Trust and its subsidiaries, taken which is attached as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.Exhibit B.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel Counsel for the Initial Purchasers, dated the Closing Date, with respect to the effect set forth in Exhibit C.issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters.
(fc) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from KPMG, Ernst & Young LLP, an independent registered public accountants for the Trust and its subsidiariesaccounting firm, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the historical consolidated financial statements and certain financial information contained of the Company included in each or incorporated by reference into the Offering Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" not more than ” within three business days prior of the date of such letter. References to the Closing DateOffering Memorandum and the Final Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(gd) (i) None of the Company nor any of its Subsidiaries, shall have sustained, since the date of the latest audited historical consolidated financial statements included or incorporated by reference in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the capital stock or other ownership interests or long-term debt of the Company and its Subsidiaries, considered as one enterprise, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, earnings, financial condition, results of operations or management of the Company and its Subsidiaries, considered as one enterprise, whether or not in the ordinary course of business, otherwise than as set forth in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the terms and in the manner described in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers shall have received on each of the date hereof and certificates dated the Closing Date a letterand in form and substance reasonably satisfactory to the Initial Purchasers, dated of (i) the date hereof or Chief Executive Officer and the Chief Financial Officer of the Company and (ii) each Guarantor: as to the accuracy of the representations and warranties of the Company and the Guarantors in this Agreement at and as of the Closing Date; that the Company and or the applicable Guarantor(s), as the case may be, in form have performed all covenants and substance satisfactory agreements and satisfied all conditions on its or their part to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d) (in the case of the certificate from the Company’s officers only).
(f) The Notes shall have received initial ratings by Standard & Poor’s and Moody’s, and, subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Section 3(a)(62) under the Exchange Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Notes or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through the Common Depositary, Euroclear and Clearstream.
(h) The On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received on each of such further certificates, documents or other information as they may have reasonably requested from the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing DateCompany.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Belden Inc.)
Conditions to the Initial Purchasers’ Obligations. The several respective obligations of each Initial Purchaser and the Initial Purchasers Collateral Agent pursuant to purchase and pay for the Securities on Section 2.2 in connection with the Closing Date are subject to the satisfaction, or waiver in accordance with this Agreement, of the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to conditions on or before the Closing Date, both before and after giving effect to the Closing:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors Party contained in this Agreement are any Transaction Document shall be true and correct as of the Closing Date (unless expressly made as of an earlier date herein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part required to be performed by any Company Party or satisfied hereunder any on or before prior to the Closing Date pursuant to any Transaction Document (other than the obligations set forth in Section 2.2 to be performed at the Closing) shall have been performed;
(iii) the delivery by each Company Party of the items such Company Party is required to deliver on or prior to the Closing Date pursuant to Section 2.3(a);
(iv) there shall exist no Event of Default and no event which, with the passage of time or the giving of notice, would constitute an Event of Default;
(v) there shall be no breach of any obligation, covenant or agreement of any Company Party under the Transaction Documents and no existing event which, with the passage of time or the giving of notice, would constitute such a breach;
(vi) no Material Adverse Effect shall have occurred from the date hereof through the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.;
(cvii) The Initial Purchasers shall have received on from the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated date hereof through the Closing Date, to trading in the effect set forth in Exhibit A. Such opinion shares of Common Stock shall be rendered to not have been suspended by the Initial Purchasers Commission or DHAC’s principal Trading Market and, at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days any time prior to the Closing Date., trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Initial Purchaser, and without regard to any factors unique to such Initial Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing;
(gviii) The Initial Purchasers shall have received on each DHAC meets the current public information requirements under Rule 144 in respect of the date hereof Commitment Shares, the Warrant Shares and any other Registrable Securities;
(ix) DHAC has duly submitted a Listing of Additional Shares Notification Form with the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters Nasdaq Capital Market with respect to each issuance of Securities pursuant to this Agreement; and
(x) any other conditions contained herein or the financial statements and certain financial information contained in each Memorandum; provided other Transaction Documents, including delivery of the items that the letter delivered any Company Party is required to deliver on the Closing Date shall use a "cut-off date" not more than three business days or prior to the Closing DateDate pursuant to Section 2.3.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Securities Purchase Agreement (Digital Health Acquisition Corp.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities Notes on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its Subsidiaries or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiariesSubsidiaries, taken as a whole, from that set forth in the Final Preliminary Memorandum provided to the prospective purchasers of the Securities Notes that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market proceed with the Securities offering, sale or delivery of the Notes on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on In the Closing Date a certificate from each discretion of the Company and the GuarantorsInitial Purchasers, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, all of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the date of this Agreement and as of the Closing Date and that each (provided that, as of the Company Closing Date, the representation under Section 1(p) hereunder shall be deemed to be made without the parenthetical relating to the Company’s Credit Facility) and the Guarantors Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsa certificate, dated the Closing DateDate and signed by an executive officer of the Company, to the effect of the matters set forth in Exhibit A. Such opinion shall be rendered Sections 5(a) and 5(b) herein. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinproceedings threatened.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx Xxxxx LLP, U.S. special outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to in substantially the effect form set forth in Exhibit B. A-1. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling Xxxxxxxxxx Hyatt Xxxxxx Xxxxxxx, LLP, U.S. special outside Nevada counsel for the Company, dated the Closing Date, in substantially the form set forth in Exhibit A-2. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(f) The Initial Purchasers shall have received on the Closing Date an opinion of White & Case LLP, counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C..
(fg) The Initial Purchasers shall have received on each of the date hereof and the Closing Date (i) a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters PricewaterhouseCoopers LLP (with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
dated after December 31, 2006), independent public accountants, and (gii) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLPKPMG LLP (with respect to the financial statements and financial information dated before January 1, independent public accountants for Storm Energy Ltd ("Storm") 2007), and, in each case, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each the Time of Sale Memorandum and the Final Memorandum; provided that each of the letter letters delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(h) The Initial Purchasers shall have received on from each of Xxxxx Xxxxx Company, L.P. and Xxxxxx & Company, Inc., the Company’s independent petroleum and natural gas engineers, letters dated, respectively, the date hereof of this Agreement and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior The Registration Rights Agreement has been duly authorized, executed and delivered by the Company.
(j) The Initial Purchasers shall have received evidence to their satisfaction that the Company has obtained all necessary consents and approvals of the terms and conditions of the Notes required pursuant to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial PurchaserCredit Facility.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations obligation of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date and prior to any subsequent Option Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the Company’s securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiariesSubsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided (exclusive of any amendments or supplements thereto subsequent to prospective purchasers the date of the Securities this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetWxxxxxxx Mxxxxx, Xxxxxxxxx & Xxxxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to in the effect form set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.A.
(d) The Initial Purchasers shall have received on the Closing Date an opinion the opinions of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. special foreign counsel for the Company in Argentina, Brazil, Chile, Mexico and the GuarantorsPeru, dated the Closing Date, to in the effect respective forms set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company Exhibits B-0, X-0, X-0, X-0 and the Guarantors and shall so state thereinB-5.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C..
(f) The Initial Purchasers shall have received received, on each of the date hereof and the Closing Date Date, a letter, letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, PricewaterhouseCoopers LLP, independent registered public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained and incorporated by reference in each the Time of Sale Memorandum and the Final Memorandum; provided that the letter letters delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof.
(g) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Initial Purchasers and certain officers of the Company as set forth in Schedule IV hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Initial Purchasers on or before the date hereof, shall be in full force and effect on the Closing Date.
(gh) At or prior to the Closing Date, the Company and the Trustee shall have executed and delivered the Indenture, and the Company and the Initial Purchasers shall have executed and delivered the Registration Rights Agreement in the form of Exhibit D hereto.
(i) The Initial Purchasers shall have received on each from the Chief Executive Officer and the Vice President and Treasurer of the date hereof and the Closing Date Company a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersPurchasers and dated the date hereof, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" relating to underwriters with respect to the financial statements and certain financial information contained included or incorporated by reference in each Memorandum; provided the Time of Sale Memorandum that is not covered in the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date“comfort letters” referenced in 5(f) above.
(hj) The Counsel for the Initial Purchasers shall have received been furnished with such documents as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities herein contemplated, or in order to evidence the accuracy of any of the representations or warranties or the fulfillment of any of the conditions herein contained.
(k) The obligation of the Initial Purchasers to purchase Additional Securities hereunder is subject to the delivery to the Initial Purchasers on each Option Closing Date of each of the date hereof and documents referred to above dated as of the Option Closing Date a letter(except that insofar as any documents relate to Securities, dated the date hereof or the Closing Date, as the case they may be, in form and substance satisfactory be limited to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"covering only Additional Securities), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers hereunder to purchase and pay for the Firm Securities on the Closing Date are subject to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) Subsequent the representations and warranties of the Company contained herein are true and correct on and as of the Closing Date as if made on and as of the Closing Date and the Company shall have complied with all agreements and all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(b) subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) , there shall not have occurred any downgrading, nor shall any notice have been given of a) any intended or potential downgrading or of b) any review for a or possible change that does not indicate the direction of the possible change, an improvement in the rating accorded any securities of or guaranteed by the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and;
(iic) since the respective dates as of which information is given in the Final Offering Memorandum there shall not have occurred been any (i) change in the capital stock or long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, its financial condition, financial management or otherwise, or in the earnings, business or results of operations of the Trust Company and its subsidiaries, taken as a whole, from that otherwise than as set forth or contemplated in the Final Memorandum provided Offering Memorandum; or (ii) any suspension or material limitation of trading in the capital stock of the Company on the Nasdaq National Market, in either case, the effect of which in the judgment of the Initial Purchasers makes it impracticable or inadvisable to prospective purchasers proceed with the offering or the delivery of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market on the Securities Closing Date on the terms and in the manner contemplated in the Final Offering Memorandum.;
(bd) The the Initial Purchasers shall have received on and as of the Closing Date a certificate from each of an executive officer of the Company and Company, with specific knowledge about the GuarantorsCompany’s financial matters, dated satisfactory to the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors Initial Purchasers to the effect set forth in Section 5(a)(iSections 6(a) and 6(b) and to the further effect that there has not occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the representations and warranties business, financial position, shareholders’ equity or results of each operations of the Company and its subsidiaries, taken as a whole from that set forth or contemplated in the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.Offering Memorandum;
(ce) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx Xxxx Xxxxx LLP, Canadian outside counsel for the Company and Company, shall have furnished to the GuarantorsInitial Purchasers their written opinion, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, substantially in form and substance satisfactory to the Initial Purchasers, from KPMGas attached hereto as Exhibit B-1;
(f) Xxxxxxx Xxxx Xxxx & Xxxxxxxxxx, LLP, independent public accountants outside counsel for the Trust Company, shall have furnished to the Initial Purchasers their written opinion, dated the Closing Date, substantially in form and its subsidiariessubstance satisfactory to the Initial Purchasers, as attached hereto as Exhibit B-2;
(g) on the date of the issuance of the Final Offering Memorandum and also on the Closing Date, KPMG LLP shall have furnished to the Initial Purchasers letters, dated the respective dates of delivery thereof, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily customarily included in accountants' "accountants “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.;
(gh) The the Initial Purchasers shall have received on each and as of the date hereof and the Closing Date a letteran opinion of Xxxxx Xxxx & Xxxxxxxx, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory counsel to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements due authorization and valid issuance of the Securities, the Registration Rights Agreement and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(i) the “lock-up” agreements, each substantially in the form of Exhibit C hereto, between you and the officers and directors of the Company relating to sales and certain financial information contained other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in each Memorandum; provided that the letter delivered full force and effect on the Closing Date Date;
(j) an application for the listing of the Underlying Securities shall use a "cut-off date" not more than three business days have been submitted to the NASDAQ National Market if necessary; and
(k) on or prior to the Closing Date.
(h) The Date the Company shall have furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers shall have received on each reasonably request. The obligations of the date hereof and Initial Purchaser to purchase Additional Securities hereunder are subject to the delivery to you on the Option Closing Date a letter, dated the date hereof or the Closing Date, of such documents as the case you may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters reasonably request with respect to the financial statements legal existence of the Company, the due authorization, execution, authentication and certain financial information contained in each Memorandum; provided that issuance of the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior Additional Securities and other matters related to the Closing Dateexecution, authentication and issuance of the Additional Securities.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Issuer and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Issuer’s officers made pursuant to the provisions hereof, to the performance by the Issuer and the Guarantors of their covenants and agreements hereunder required to be performed or satisfied at or prior to the Closing Date, and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to The Initial Purchaser shall have received an opinion, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel for a possible change that does not indicate the direction of Issuer and the possible changeGuarantors, in form and substance satisfactory to the rating accorded Initial Purchaser, substantially to the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that effect set forth in Exhibit A hereto. In rendering such opinions, such counsel may rely as to matters of fact, to the Final Memorandum provided to prospective purchasers extent such counsel deems proper, on certificates of responsible officers of the Securities that, in your judgment, is material Issuer and adverse the Guarantors and that makes it, in your judgment, impracticable to market certificates or other written statements of official jurisdictions having custody of documents respecting the Securities on corporate existence or good standing of the terms Issuer and in the manner contemplated in the Final MemorandumGuarantors.
(b) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate from each of the Company and the Guarantorsan opinion, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicableDate, of each Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchaser, with respect to the issuance and sale of the Company Notes and such other related matters as the Initial Purchaser may reasonably require, and the Subsidiary Guarantors Issuer shall have furnished to such counsel such documents as it may reasonably request for the effect set forth in Section 5(a)(i) and purpose of enabling it to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering pass upon such certificates may rely upon the best of his or her knowledge as to proceedings threatenedmatters.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers Purchaser shall have received on each of the date hereof and on the Closing Date a letter, dated the date hereof or and the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial PurchasersPurchaser and counsel for the Initial Purchaser, from KPMG, Deloitte & Touche LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters initial purchasers with respect to the financial statements and certain financial information contained in each the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" not more than ” within three business days prior to of the Closing Datedate of such letter.
(gd) Since the date as of which information is given in the Final Memorandum, there shall not have been any event or condition which would have a Material Adverse Effect, otherwise than as set forth in such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case, is, in the sole reasonable judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers Purchaser shall have received on each of the date hereof and a certificate, dated the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, and in form and substance satisfactory to the Initial PurchasersPurchaser, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Chief Executive Officer and the Chief Financial Officer of the Issuer as to the financial statements accuracy of the representations and certain financial information contained warranties of the Issuer in each Memorandum; provided that the letter delivered on this Agreement at and as of the Closing Date in all material respects (except for such representations and warranties that are qualified by materiality, which shall use a "cut-off date" not more than three business days be accurate in all respects); that the Issuer and the Guarantors have performed all covenants and agreements and satisfied all conditions on its part required to be performed or satisfied at or prior to the Closing DateDate in all material respects (except for such covenants and conditions that are qualified by materiality, which shall have been performed and satisfied in all respects); and as to the matters set forth in Section 6(d).
(f) The Notes shall have been designated for trading on PORTAL.
(g) The Notes shall be eligible for clearance and settlement through The Depository Trust Company and Clearstream Banking and the Euroclear System, if necessary.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof On or before the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and counsel for the Trust Initial Purchaser shall have entered into an Amended and Restated Net Profit Interest Agreement that is received such further certificates, documents or other information as they may have reasonably satisfactory to requested from the Initial PurchaserIssuer.
Appears in 1 contract
Samples: Purchase Agreement (Vycom Corp.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Company and the Guarantors contained herein, to the performance by the Company and the Guarantors of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of Simpson Thacher & Bartlett, counsel for the Initial Purchasers, is matxxxxx xx xxxxx to xxxxx xxy fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(b) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York City time, on the day following the date of this Agreement or at such later date and time as to which the Company and the Initial Purchasers may agree.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonable satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) The Initial Purchasers shall have received from Fulbright & Jaworski L.L.P. their written opinion, as counsel to the Company, addrxxxxx xx the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit B hereto.
(e) The Initial Purchasers shall have received from James C. Reed, Jr., general counsel of the Company, his written opiniox, xx xxxxxxx xx xhe Company, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit C hereto.
(f) At the time of execution of this Agreement, the Initial Purchasers shall have received from each of Deloitte & Touche LLP and Ernst & Young LLP, letters, in form and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof, (i) confirming that they are independent public accountants with respect to the Company under Rule 101 of the AICPA'S Code of Professional Conduct, and its interpretations and rulings, (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five business days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information, operating data and other matters ordinarily covered by accountants' "comfort letters" to underwriters, including the financial information contained or incorporated by reference in the Offering Memorandum as identified by you.
(g) With respect to the letters of Deloitte & Touche LLP and Ernst & Young LLP referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letters"), the Company shall have furnished to the Initial Purchasers letters (the "bring-down letters") of such accountants, addressed to the Initial Purchasers and dated the Closing Date, (i) confirming that they are independent public accountants with respect to the Company under Rule 101 of the AICPA'S Code of Professional Conduct, and its interpretations and rulings, (ii) stating, as of the date of the bring-down letters (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five business days prior to the date of the bring-down letters), the conclusions and findings of such firm with respect to the financial information, operating data and other matters covered by the respective initial letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial letters.
(h) The Company shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of (i) the Senior Vice President and Chief Financial Officer of the Company and (ii) the Vice President and Treasurer of the Company stating that:
(i) The representations, warranties and agreements of the Company in Section 1 are true and correct as of the Closing Date and the Company has complied with all its agreements contained herein;
(ii) (A) Neither the Company nor any of the Subsidiaries has sustained since the date of the latest quarterly financial statements included in or incorporated by reference into the Offering Memorandum any material 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, otherwise than as set forth or contemplated in the Offering Memorandum and (B) since such date there has not been any material change in the capital stock, long-term debt or short-term debt of the Company or any of the Subsidiaries or any material change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity, results of operations or prospects of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Offering Memorandum; and
(iii) They have carefully examined the Preliminary Offering Memorandum and the Offering Memorandum and, in their opinion (A) the Preliminary Offering Memorandum and the Offering Memorandum, as of their respective dates did not include any untrue statement of a material fact and did not omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum.
(i) (i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in or incorporated by reference into the Offering Memorandum any material 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, otherwise than as set forth or contemplated in the Offering Memorandum and (ii) since such date there shall not have been any material change in the capital stock, long-term debt or short-term debt of the Company or any of its Subsidiaries or any material change, or any development involving a prospective material change, in or affecting the general affairs, management, consolidated financial position, stockholders' equity or results of operations of the Company and its Subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner contemplated in the Offering Memorandum.
(j) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there no downgrading shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors Guarantor or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors Guarantor by any "nationally recognized statistical rating organization," as such that term is defined by the Commission for purposes of Rule 436(g)(2) under of the Securities Act; and
Rules and Regulations and (ii) there no such organization shall not have occurred any changepublicly announced that it has under surveillance or review, or any development involving a prospective changewith possible negative implications, in the condition, financial or otherwise, or in the earnings, business or operations its rating of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final MemorandumNotes.
(bk) The Company, the Guarantors and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts thereof.
(l) The Company, the Guarantors and the Initial Purchasers shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts thereof.
(m) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the GuarantorsSimpson Thacher & Bartlett, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated their xxxxxxx, xxxxx the Closing Xxxxxxx Date, with respect to such matters as the effect set forth in Exhibit C.
(f) The Initial Purchasers may reasonably require, and the Company shall have received on each furnished to such counsel such documents and information as they may reasonably request for the purpose of enabling them to pass upon such matters. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the date provisions hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, only if they are in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to counsel for the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities on the Closing Date are Original Notes, as provided for in this Agreement, shall be subject to satisfaction of the following conditionsconditions prior to or concurrently with such purchase:
(a) Subsequent to All of the execution representations and delivery warranties of the Issuers contained in this Agreement shall be true and correct in all material respects on the date of this Agreement and on the Closing Date (other than any such representations or warranties which are qualified as to materiality, which representations and warranties shall be accurate in all respect on the date hereof and on the Closing Date). Each of the Issuers shall have in all material respects performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by it on or prior to the Closing Date:.
(ib) there The Offering Memorandum shall not have occurred any downgrading, nor shall any notice have been given printed and copies distributed to the Initial Purchaser on the date of any intended this Agreement or potential downgrading at such later date as the Initial Purchaser may determine. No stop order suspending the qualification or of any review for a possible change that does not indicate the direction exemption from qualification of the possible changeOriginal Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency that would, as of the Closing Date, prevent the issuance and sale of the Original Notes or consummation of the Exchange Offer; except as disclosed in the rating accorded Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the Company best knowledge of the Issuers, threatened against either of the Issuers or any of their respective subsidiaries before any court or arbitrator or any governmental body, agency or official that could reasonably be expected to have a Material Adverse Effect; and no stop order preventing the Guarantors use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the securities transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued.
(d) As of the date of the latest balance sheet presented in the Offering Memorandum, neither the Company nor any of its subsidiaries had any material liabilities or obligations, direct or contingent, that were required in accordance with GAAP, to be set forth in the Company’s consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum not so set forth. Since the date of the latest balance sheet presented in the Offering Memorandum, except as set forth or contemplated in the Offering Memorandum, (a) neither of the Issuers has (1) incurred any liabilities or obligations, direct or contingent, that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Issuers that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock and (d) there has not been any material change in the long-term debt of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; andits subsidiaries.
(iie) there The Initial Purchaser shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations received certificates from each of the Trust and Issuers, dated the Closing Date, signed by two authorized officers of each of the Issuers confirming, as of the Closing Date, to its subsidiariesknowledge, taken as a whole, from that the matters set forth in the Final Memorandum provided to prospective purchasers paragraphs (a), (b), (c) and (d) of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandumthis Section 8.
(bf) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate from each of the Company and the Guarantors, opinions dated the Closing Date and signed by an executive officerDate, trustee or managing partner, as applicableaddressed to the Initial Purchaser, of each of the Company and the Subsidiary Guarantors (i) Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel to the effect set forth in Section 5(a)(iIssuers, (ii) and Xxxxxxx Brignone, special Nevada counsel to the effect that Issuers, (iii) Sidley Xxxxxx Xxxxx & Xxxx LLP, special regulatory counsel to the representations Issuers, (iv) Xxxxx X. Xxxxxxx, general counsel to the Issuers, and warranties (v) Xxxxxx and Xxxxxx, Cayman Islands counsel to Issuers, each substantially in the form of each of Exhibits X-0, X-0, X-0, X-0 and A-5 attached hereto, with such reasonable assumptions and qualifications satisfactory to the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatenedInitial Purchaser.
(cg) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing DateDate of Skadden, to the effect set forth in Exhibit A. Such opinion shall be rendered Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinPurchaser.
(dh) The On the date hereof, the Initial Purchasers Purchaser shall have received on the Closing Date an opinion a “comfort letter” from each of Xxxx, Weiss, Rifkind, Xxxxxxx Deloitte & Xxxxxxxx Touche LLP and PricewaterhouseCoopers LLP, U.S. counsel independent public accountants for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letterIssuers, dated the date hereof or of this Agreement, addressed to the Closing Date, as the case may be, Initial Purchaser and in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust Purchaser and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect counsel to the financial statements and certain financial information contained in each Memorandum; provided that Initial Purchaser. In addition, the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers Purchaser shall have received on “bring-down comfort letter” from each of the date hereof Deloitte & Touche LLP and the Closing Date a letterPricewaterhouseCoopers LLP, dated the date hereof or as of the Closing Date, as addressed to the case may be, Initial Purchaser and in form and substance satisfactory to the Initial PurchasersPurchaser and counsel to the Initial Purchaser.
(i) Each of the other Note Documents shall have been executed and delivered and the Initial Purchaser shall have received copies, from Deloitte conformed as executed, thereof.
(j) Skadden, Arps, Slate, Xxxxxxx & Touche Xxxx LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements counsel to the Initial Purchaser, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and information in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the type ordinarily included representations, warranties or conditions contained in accountants' "comfort letters" this Agreement.
(k) The Notes shall be eligible for trading in PORTAL upon issuance. All agreements set forth in the representation letter of the Issuers to underwriters with respect DTC relating to the financial statements approval of the Notes by DTC for “book-entry” transfer shall have been complied with. If any of the conditions specified in this Section 8 shall not have been fulfilled when and certain financial information contained in each Memorandum; provided that as required by this Agreement to be fulfilled (or waived by the letter delivered Initial Purchaser), this Agreement may be terminated by the Initial Purchaser on notice to the Closing Date shall use a "cut-off date" not more than three business days Issuers and at any time at or prior to the Closing Date.
(h, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect. The Initial Purchasers shall have received on each documents required to be delivered by this Section 8 will be delivered at the office of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to counsel for the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered Purchaser on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Wh Holdings Cayman Islands LTD)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, business prospects or operations of the Trust Company and its subsidiariesthe Subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, officer of each of the Company and the Subsidiary Guarantors Operating Partnership, to the effect that the conditions set forth in Section 5(a)(i5(a) above have been met and to the effect that the representations and warranties of each of the Company and the Guarantors Operating Partnership contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has Operating Partnership have complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion and disclosure letter of Burnet, Xxxxxxxxx Xxxxxx & Xxxxxx Xxxxxxxx LLP, Canadian outside counsel for the Company and the GuarantorsOperating Partnership, dated the Closing Date, in the form of Exhibit A-1 hereto and an opinion of Xxxxxx & Xxxxxxxx LLP as to certain tax matters substantially in the effect set forth form of Exhibit A-2 hereto. The opinions and disclosure letter of Xxxxxx & Xxxxxxxx LLP described in Exhibit A. Such opinion Exhibits A-1 and A-2, respectively, shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors Operating Partnership and shall so state therein. In giving the opinion included in Exhibit A-1 hereto, Xxxxxx & Xxxxxxxx LLP may rely, as to all matters governed by Maryland law, upon the opinion of Xxxxxxx LLP referred to in Section 5(d) below.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. Maryland counsel for to the Company and the GuarantorsCompany, dated the Closing Date, to in the effect set forth form of Exhibit B hereto. The opinion of Xxxxxxx LLP described in Exhibit B. Such opinion B shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date a certificate of the Chief Financial Officer of the Company, dated the Closing Date, with respect to litigation matters.
(f) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling Sidley Austin LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, in the form and substance reasonably satisfactory to the effect set forth Initial Purchasers. In giving such opinion such counsel may rely, as to all matters governed by Maryland law, upon the opinion of Xxxxxxx LLP referred to in Exhibit C.Section 5(d) above.
(fg) The Initial Purchasers shall have received received, on each of the date hereof and the Closing Date Date, a letter, letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, Ernst & Young LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information relating to the Company and the Phoenix Fund contained in each the Preliminary Memorandum, the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Datehereof.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a lettercertificate of the chief financial officer of the Company, dated the date hereof or the Closing Date, in a form reasonably satisfactory to the Initial Purchasers.
(i) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between you and the parties identified on Exhibit C-1 hereto relating to sales and certain other dispositions of shares of Company Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement that shall have been executed and delivered by a duly authorized officer of the Company and the Operating Partnership.
(k) The Securities shall be eligible for clearance and settlement through DTC.
(l) An application for the listing of the Underlying Securities shall have been submitted to the New York Stock Exchange (the “NYSE”).
(m) Such other documents as you may reasonably request with respect to the good standing of each of the Company and the Operating Partnership, the due authorization, execution, authentication and issuance of the Securities and the Guarantees to be sold on the Closing Date and other matters related to the execution, authentication and issuance of the Securities and the Guarantees.
(n) The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of each of the Company and the Operating Partnership, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and disclosure letter of Xxxxxx & Xxxxxxxx LLP, outside counsel for the Company and the Operating Partnership, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion required by Section 5(c) hereof;
(iii) an opinion of Xxxxxxx LLP, Maryland counsel to the Company, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) a certificate of the Chief Financial Officer of the Company, dated the Option Closing Date, confirming that the certificate delivered on the Closing Date pursuant to Section 5(e) hereof remains true and correct as of such Option Closing Date;
(v) an opinion of Xxxxxx Xxxxxx LLP, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(f) hereof;
(vi) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, Ernst & Young LLP, independent public accountants for EnCana Corporation ("EnCana")accountants, containing statements substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(g) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.; and
(ivii) Prior such other documents as you may reasonably request with respect to the Closing Date, (i) good standing of each of the Company and the Trust shall have entered into an Amended Operating Partnership, the due authorization, execution, authentication and Restated Net Profit Interest Agreement that is reasonably satisfactory issuance of the Additional Securities and the related Guarantees to be sold on such Option Closing Date and other matters related to the Initial Purchaser execution, authentication and (ii) Harvest Sask Energy Trust issuance of the Additional Securities and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserrelated Guarantees.
Appears in 1 contract
Samples: Purchase Agreement (American Residential Properties, Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date or any Option Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or any Option Closing Date, as the case may be:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or to any of the Guarantors or any of the Company’s securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Preliminary Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market proceed with the completion of the sale and payment for the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date Date, or such Option Closing Date, as the case may be, a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date Date, or such Option Closing Date, as the case may be, and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section Sections 5(a)(i) and 5(a)(ii) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date Date, or such Option Closing Date, as the case may be, and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date, or such Option Closing Date, as the case may be. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall not have received discovered and disclosed to the Company on or prior to the Closing Date that the Pricing Disclosure Package, the Final Offering Memorandum, any Free Writing Offering Document, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of BurnetDxxxx Xxxx & Wxxxxxxx, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company Initial Purchasers, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinstatements therein not misleading.
(d) The Initial Purchasers All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Pricing Disclosure Package, the Final Offering Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. be reasonably satisfactory in all material respects to counsel for the Company Initial Purchasers, and the Guarantors, dated the Closing Date, Company shall have furnished to the effect set forth in Exhibit B. Such opinion shall be rendered such counsel all documents and information that they may reasonably request to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinenable them to pass upon such matters.
(e) The Initial Purchasers shall have received on the Closing Date Date, or such Option Closing Date, as the case may be, opinions of Sxxxxxx & Lxx, P.C., U.S. counsel for the Company, dated the Closing Date, or such Option Closing Date, as the case may be, to the effect set forth in Exhibits A-1 and A-2 hereto.
(f) The Initial Purchasers shall have received on the Closing Date, or such Option Closing Date, as the case may be, an opinion of Shearman Lxxxxxx Xxxxxxxxxxxxxx 00, Xxxxxxxxx counsel for the Company, dated the Closing Date, or such Option Closing Date, as the case may be, to the effect set forth in Exhibit B hereto.
(g) The Initial Purchasers shall have received on the Closing Date, or such Option Closing Date, as the case may be, an opinion of Hxxxxxxx Bxxxx Xxxxx & Sterling LLPRxxxxxxx, P.C., U.S. Intellectual Property counsel for the Company, dated the Closing Date, or such Option Closing Date, as the case may be, to the effect set forth in Exhibit C hereto.
(h) The Initial Purchasers shall have received on the Closing Date, or such Option Closing Date, as the case may be, an opinion of Dxxxx Xxxx & Wxxxxxxx, U.S. counsel for the Initial Purchasers, dated the Closing Date, or such Option Closing Date, as the case may be, to the effect set forth in Exhibit C.D hereto.
(fi) The Initial Purchasers shall have received received, on each of the date hereof and the Closing Date Date, or such Option Closing Date, as the case may be, a letter, letter dated the date hereof or the Closing Date, or such Option Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMGeach of Deloitte & Touche LLP, PricewaterhouseCoopers LLP, and PricewaterhouseCoopers ehf, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into each of the Preliminary Memorandum, the Pricing Disclosure Package and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three the date hereof and any letter delivered on any Option Closing Date shall use a “cut-off date” not earlier than the first business days prior day immediately preceding such Option Closing Date.
(j) The “lock-up” agreements, each substantially in the form of Exhibit E hereto, between the Initial Purchasers and the directors and executive officers of the Company, in each case relating to sales and certain other dispositions of shares of common stock or certain other securities of the Company, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(gk) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letteran opinion of Mxxxxxxx, Gerstein & Borun LLP. Intellectual Property counsel for the Company, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory Date to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included effect set forth in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing DateExhibit F hereto.
(hl) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letteran opinion of Hxxxxx Xxxxxxxxxx Xxxxxx & Mxxxxx, P.C., Intellectual Property counsel for the Company, dated the date Closing Date to the effect set forth in Exhibit G hereto. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof or the Closing Date, as the case may be, only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information . The several obligations of the type ordinarily included in accountants' "comfort letters" Initial Purchasers to underwriters purchase Additional Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the financial statements good standing of the Company, the due authorization execution and certain financial information contained in each Memorandum; provided that authentication of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateexecution and authentication of such Additional Securities.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Company, the Guarantor and the Selling Noteholder in this Agreement are, at and as of the Closing Date, true and correct, the condition that each of them shall have performed in all material respects all of their respective obligations hereunder theretofore to be performed; provided, that in the case of the representations and warranties and other statements of the Selling Noteholder, such representations and warranties and other statements shall be subject to the waiver by the Company to the extent legally permissible; and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, with respect to such matters as may be reasonably requested by the Initial Purchasers;
(b) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx X. Xxxxx, Divisional Vice President, Associate General Counsel and Assistant Secretary of the Guarantor on behalf of the Company (or such other person who shall be a senior legal officer of the Company or Guarantor on the Closing Date), dated the Closing Date, to the effect set forth in Exhibit C.A hereto;
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx X. Xxxxx, Divisional Vice President, Associate General Counsel and Assistant Secretary (or such other person who shall be Divisional Vice President, and Associate General Counsel and Assistant Secretary of the Guarantor on the Closing Date), dated the Closing Date, to the effect set forth in Exhibit B hereto;
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Wachtell, Lipton, Xxxxx & Xxxx LLP, outside counsel for the Company and the Guarantor, dated the Closing Date, to the effect set forth in Exhibit C-1 and a negative assurance letter, dated the Closing Date, to the effect set forth in Exhibit C-2;
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxxx Xxxxx LLP, outside counsel for the Company and the Guarantor, dated the Closing Date, to the effect set forth in Exhibit D-1 and a negative assurance letter, dated the Closing Date, to the effect set forth in Exhibit D-2;
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beapplicable, in form and substance satisfactory to the Initial Purchasers, from KPMG, Deloitte & Touche LLP, independent public accountants for the Trust and its subsidiariesCompany, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Date.date hereof;
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beapplicable, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") the Guarantor, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three the date hereof;
(i) Neither the Company, nor the Guarantor nor any of their respective subsidiaries shall have sustained since the date of the latest financial statements included in the Time of Sale Memorandum any loss or interference with its business days prior 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, otherwise than as set forth or contemplated in the Time of Sale Memorandum, and (ii) since the respective dates as of which information is given in the Time of Sale Memorandum there shall not have been any change in the consolidated capital stock or any increase in the consolidated long-term debt of the Company and its subsidiaries or the Guarantor and its subsidiaries, in each case, taken as a whole, or any change, or any development involving a prospective change, in or affecting the business, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries or the Guarantor and its subsidiaries, in each case, taken as a whole, otherwise than as set forth or contemplated in the Time of Sale Memorandum, the effect of which, in any such case described in clause (i) or (ii), is in the reasonable judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Memorandum;
(i) On or after the date of this Agreement (i) no downgrading shall have occurred, nor shall any notice have been given of any intended or potential downgrading, in the rating accorded the Company (if any) or the Guarantor or any of the securities of the Company, the Guarantor or any of their subsidiaries by Xxxxx’x Investor Services or Standard & Poor’s Ratings Service and (ii) neither organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s nor the Guarantor’s debt securities;
(j) The Company and the Guarantor shall have furnished or caused to be furnished to the Closing Date.
(h) The Initial Purchasers shall have received Representatives on each of the date hereof and the Closing Date a lettercertificate or certificates of officers of the Company or the Guarantor, dated as applicable, satisfactory to the date hereof Representatives as to the accuracy of the representations and warranties of the Company or the Guarantor, as applicable, herein at and as of the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasersperformance by the Company or the Guarantor, from PricewaterhouseCoopersas applicable, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" all of its respective obligations hereunder to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days be performed at or prior to the Closing Date.Date and as to the matters set forth in Section 7(h) and 7(i);
(ik) Prior The Debt for Debt Exchange shall have been consummated or shall occur substantially concurrently with the issuance and sale of the Securities; and
(l) The private letter ruling Xxxxxx received from the Internal Revenue Service on October 25, 2012 shall continue to be valid as of the Closing Date and shall not have been revoked or modified in any material respect that is adverse to the Closing Date, (i) Guarantor or the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial PurchaserCompany.
Appears in 1 contract
Samples: Purchase Agreement (AbbVie Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or the applicable Option Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the debt securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any material change, or any development involving a prospective changeMaterial Adverse Effect, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date and each Option Closing Date, if any, a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date or applicable Option Closing Date, as the case may be, and signed by an the chief executive officer, trustee officer or managing partner, as applicable, of each the chief financial officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are (i) true and correct in all material respects (other than representations and warranties qualified by materiality, in which case such representations shall be true and correct in all respects) as of the Closing Date and with the same effect as if made on such delivery date or applicable Option Closing Date, as the case may be, (ii) that each of the Company and the Guarantors has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date or applicable Option Closing Date, as applicable, and (iii) since the date of the most recent financial statements included in the Time of Sale Memorandum, there has been no material adverse change in the financial condition, earnings, business or properties of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the Time of Sale Memorandum. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date and each Option Closing Date, as the case may be, an opinion of BurnetXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxx & Xxxxxx LLPProfessional Corporation, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date and each Option Closing Date, to as the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Datecase may be, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date and each Option Closing Date, as the case may be, an opinion of Xxxxxxx X. Xxxxx, the Company’s General Counsel, dated the Closing Date and each Option Closing Date, as the case may be, to the effect set forth in Exhibit C.
(e) The Initial Purchasers shall have received on the Closing Date and each Option Closing Date, as the case may be, an opinion of Shearman Xxxxxxx Xxxxxxx & Sterling Xxxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date and each Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the effect set forth in Exhibit C.Initial Purchasers.
(f) The Initial Purchasers shall have received on each of the date hereof and hereof, the Closing Date and each Option Closing Date, if any, a letter, dated the date hereof hereof, the Closing Date or the applicable Option Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, PricewaterhouseCoopers LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing DateFebruary 4, 2013.
(g) The Initial Purchasers shall have received on each of the date hereof and hereof, the Closing Date and each Option Closing Date, if any, a letter, dated the date hereof hereof, the Closing Date or the applicable Option Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche KPMG LLP, independent public accountants for Storm Energy Ltd ("Storm") accountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information of Inotera Memories, Inc. (“Inotera”) contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing DateDecember 31, 2011.
(h) The Initial Purchasers shall have received on each of the date hereof and hereof, the Closing Date and each Option Closing Date, if any, a letter, dated the date hereof hereof, the Closing Date or the applicable Option Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLPErnst & Young ShinNihon LLC, independent public accountants for EnCana Corporation ("EnCana")auditors, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information of Elpida Memory, Inc. (“Elpida”) contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior February 4, 2013.
(i) The “lock up” agreements, each substantially in the form of Exhibit A, between you and certain officers and directors of the Company named in Schedule IV relating to sales and certain other dispositions of Securities, Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(ij) Prior to the Closing Date, (i) the Company shall have received all waivers or consents under any agreement or other instrument binding upon the Company or any of its subsidiaries, including any indentures, mortgage, deed of trust, loan agreement, stockholder agreement or other agreement that is material to the Company and its subsidiaries, taken as a whole, that are necessary for the Trust shall have entered into an Amended issuance of the Securities and Restated Net Profit Interest Agreement that is reasonably satisfactory the performance by the Company of its obligations under this Agreement, the Indentures and the Securities. The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the Initial Purchaser and (ii) Harvest Sask Energy Trust and delivery to you on the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is applicable Option Closing Date of such documents as you may reasonably satisfactory request with respect to the Initial Purchasergood standing of the Company, the due authorization and issuance of the Additional Securities to be sold on such Option Closing Date and other matters related to the issuance of such Additional Securities.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors its subsidiaries or any of the securities of the Company or of any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors any of its subsidiaries by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum (excluding any amendments or supplements thereto) provided to the prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, officer of each of the Company and the Subsidiary Guarantors Guarantors, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct in all material respects as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date and a certificate, dated the Closing Date, and signed by an officer of each of the Company and the Guarantors with respect to the matters set forth in Exhibit A hereto. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings and labor disputes threatened.
(c) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx Kxxxxxxx & Xxxxxx Exxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, outside U.S. counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers Purchaser at the request of the Company and the Guarantors and shall so state therein.
(ed) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Shearman & Sterling LLPSolertia Asesores, U.S. S.C. (Axxxxxx Abogados), outside counsel for the Initial PurchasersCompany, dated the Closing Date, to the effect set forth in Exhibit C.C. Such opinion shall be rendered to the Initial Purchaser at the request of the Company and shall so state therein.
(e) The Initial Purchaser shall have received on the Closing Date an opinion of Dxxxx Xxxx & Wxxxxxxx, counsel for the Initial Purchaser, dated the Closing Date, with respect to such matters as the Initial Purchaser may reasonably request.
(f) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Mxxxxxx, Angoitia, Cxxxxx x Xxxxxxx, S.C., counsel for the Initial Purchaser, dated the Closing Date, to the effect set forth in Exhibit D.
(g) The Company shall have authorized Deutsche Bank Luxembourg S.A. (the “Luxembourg Listing Agent”) to make or cause to be made an application on the Company’s behalf for the Memorandum relating to the Notes to be approved by the Luxembourg Stock Exchange (the “Stock Exchange”) for listing of the Notes on the official list of the Stock Exchange and for the Notes to be admitted to trading on the EuroMTF market of the Stock Exchange.
(h) The Initial Purchaser shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersPurchaser, from KPMGPricewaterhouseCoopers, LLPS.C., independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Datehereof.
(i) Prior to the Closing Date, (i) the Company and the Trust CT Corporation System shall have entered into an Amended been appointed and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaseraccepted appointment as agent for service of process as specified in Section 14.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors its subsidiaries by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your judgmentthe judgment of the Representative, is material and adverse and that makes it, in your judgmentthe judgment of the Representative, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed on behalf of the Company by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section Sections 5(a)(i) and 5(a)(ii) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of BurnetWxxxxx Xxxxxxx Xxxxxxxx & Rxxxxx, Xxxxxxxxx & Xxxxxx LLPProfessional Corporation, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinRepresentative.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of XxxxAnthony L.G., WeissPLLC, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. outside Florida counsel for the Company and the GuarantorsCompany, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinRepresentative.
(e) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Shearman & Sterling Cxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, in form and substance satisfactory to the effect set forth Representative. With respect to Sections (c) and (e) above, each of Wxxxxx Xxxxxxx Xxxxxxxx & Rxxxxx, Professional Corporation and Cxxxxx LLP may state that their opinions and beliefs are based upon their participation in Exhibit C.the preparation of the Time of Sale Memorandum and the Final Memorandum and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinions and negative assurance letters, as applicable, of Wxxxxx Xxxxxxx Xxxxxxxx & Rxxxxx, Professional Corporation and Anthony L.G., PLLC described in Sections 5(c) and 5(d) above shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, each of KPMG US LLP, L X Xxxxxxxxx Associates, LLC, Mxxxxx LLP, and Ernst & Young LLP, each an independent registered public accountants for the Trust and its subsidiariesaccounting firm, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Preliminary memorandum, the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof.
(g) The Lock-up Agreements, each substantially in the form of Exhibit A hereto, executed by certain securityholders and by all executive officers and directors of the Company, relating to restrictions on sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representative on or before the date hereof, shall be in full force and effect on the Closing Date.
(gh) The Initial Purchasers chief financial officer of the Company shall have received delivered to the Initial Purchasers, on each of the date hereof and the Closing Date a letter, dated the date hereof or on the Closing Date, a certificate in a form reasonably acceptable to the Representative.
(i) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(j) An application for the listing of the Underlying Securities shall have been submitted to the New York Stock Exchange (the “Exchange”).
(k) The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to the Representative on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of Wxxxxx Xxxxxxx Xxxxxxxx & Rxxxxx, Professional Corporation, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion and negative assurance letter required by Section 5(c) hereof;
(iii) an opinion of Anthony L.G., PLLC, outside Florida counsel for the Company, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) an opinion and negative assurance letter of Cxxxxx LLP, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche each of KPMG US LLP, L X Xxxxxxxxx Associates, LLC, Mxxxxx LLP, and Ernst & Young LLP, each an independent registered public accountants for Storm Energy Ltd ("Storm") containing statements accounting firm, substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(f) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.;
(hvi) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a lettercertificate, dated the date hereof or Option Closing Date and signed by the Closing Date, as chief financial officer of the case may be, Company substantially in the same form and substance satisfactory as the certificate furnished to the Initial PurchasersPurchasers pursuant to Section 5(h) hereof; and
(vii) such other certificates and documents as the Representative may reasonably request, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters including without limitation with respect to the financial statements good standing of the Company and certain financial information contained in each Memorandum; provided that its subsidiaries, the letter delivered due authorization and issuance of the Additional Securities to be sold on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the such Option Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory other matters related to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchasersale of such Additional Securities.
Appears in 1 contract
Samples: Purchase Agreement (fuboTV Inc. /FL)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any material change, or any development involving a prospective changeMaterial Adverse Effect, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers Representatives shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Representatives shall have received on the Closing Date an opinion of BurnetXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxx & Xxxxxx LLPProfessional Corporation, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers Representatives at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers Representatives shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.B.
(fe) The Initial Purchasers Representatives shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersRepresentatives, from KPMG, PricewaterhouseCoopers LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof.
(f) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between you and each of the executive officers and directors named in Schedule IV hereto of the Company relating to sales and certain other dispositions of shares of common stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(g) . The several obligations of the Initial Purchasers shall have received to purchase Additional Securities hereunder are subject to the delivery to you on each of the date hereof and the applicable Option Closing Date a letter, dated the date hereof or the Closing Date, of such documents as the case you may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters reasonably request with respect to the financial statements good standing of the Company, the due authorization, execution, authentication and certain financial information contained in each Memorandum; provided that issuance of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateexecution, authentication and issuance of such Additional Securities.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the debt securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any material change, or any development involving a prospective changeMaterial Adverse Effect, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an the chief executive officer, trustee officer or managing partner, as applicable, of each the chief financial officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are (i) true and correct in all material respects (other than representations and warranties qualified by materiality, in which case such representations shall be true and correct in all respects) as of the Closing Date and with the same effect as if made on such delivery date, (ii) that each of the Company and each of the Guarantors has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date, and (iii) since the date of the most recent financial statements included in the Time of Sale Memorandum, there has been no material adverse change in the financial condition, earnings, business or properties of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the Time of Sale Memorandum. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxx & Xxxxxx LLPProfessional Corporation, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx Stoel Rives LLP, U.S. outside counsel for the Company and the GuarantorsGuarantor, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLPXxxx X. Xxxxxx, U.S. counsel for the Initial PurchasersCompany’s General Counsel, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letteran opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Initial Purchasers, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beapplicable, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche PricewaterhouseCoopers LLP, independent public accountants for Storm Energy Ltd ("Storm") accountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing DateApril 22, 2016.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, the Company shall have received all waivers or consents under any agreement or other instrument binding upon the Company or any of its subsidiaries, including any indentures, mortgage, deed of trust, loan agreement, stockholder agreement or other agreement that is material to the Company and its subsidiaries, taken as a whole, that are necessary for the issuance of the Securities and the performance by the Company of its obligations under the Transaction Documents.
(i) Each of the Company Security Documents required to be executed and delivered on the Trust Closing Date shall have entered into an Amended been duly executed and Restated Net Profit Interest Agreement that is delivered by the parties thereto. Each other document or instrument (in each case, in a form and substance reasonably satisfactory to the Initial Purchaser and (iiPurchasers) Harvest Sask Energy Trust required to cause the Securities and the Trust Guarantees to be secured by liens on the Collateral, in each case to the extent and in the manner provided for in the Indenture and the Security Documents, as described in the Time of Sale Memorandum and the Final Memorandum, shall have entered into an Amended been executed and Restated Net Profit Interest delivered by the appropriate persons. The Initial Purchasers shall have received signed copies of such Security Documents required to be executed and delivered on the Closing Date and each other document or instrument required to cause the Securities and the Guarantees to be secured by liens on the Collateral. The Initial Purchasers shall have also received appropriate lien searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name the Company or any Guarantor as debtor and that are filed in those jurisdictions in which the Company or any Guarantor is organized and such other searches that the Initial Purchasers deem necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Documents (other than Permitted Liens and liens not prohibited by the Indenture).
(j) The Company shall have repaid in full in immediately available funds and terminated all commitments under that certain Credit Agreement, dated as of December 2, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and among the Borrower, Micron Semiconductor Products, Inc., the guarantors party thereto, HSBC Bank USA, N.A., as administrative agent, HSBC Bank USA, N.A. and JPMorgan Chase Bank, N.A., as co-collateral agents, and the lenders party thereto (the “ABL Credit Agreement”), terminated or released all liens and security interests related to the ABL Credit Agreement that is reasonably satisfactory and provided to the Initial PurchaserPurchasers a copy of the executed payoff letter related thereto (which may be a copy of the payoff letter provided to the administrative agent under the New Credit Facility).
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) Date there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your the Representative’s judgment, is material and adverse and that makes it, in your the Representative’s judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers Representative shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed on behalf of the Company by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Representative shall have received on the Closing Date an opinion and negative assurance letter of BurnetXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxx & Xxxxxx LLPProfessional Corporation (“WSGR”), Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers Representative shall have received on the Closing Date an opinion and negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit C.Representative.
(fe) The Initial Purchasers Representative shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersRepresentative, from KPMG, Ernst & Young LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof.
(f) The “lock-up” agreements, each substantially in the form of Exhibit B hereto, between Xxxxxx Xxxxxxx & Co. LLC and directors and officers (within the meaning of Section 16 of the Exchange Act) of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to Xxxxxx Xxxxxxx & Co. LLC on or before the date hereof, shall be in full force and effect on the Closing Date.
(g) An application for the listing of the Conversion Securities shall have been submitted to The New York Stock Exchange (the “Exchange”), and the Conversion Securities shall have been approved for listing on the Exchange, subject to official notice of issuance.
(h) The several obligations of the Initial Purchasers shall have received to purchase Additional Securities hereunder are subject to the delivery to the Representative on each the applicable Option Closing Date of the date hereof following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date a letterpursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of WSGR, outside counsel for the Company, dated the date hereof or the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion required by Section 5(c) hereof;
(iii) an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial PurchasersPurchaser, from Deloitte Ernst & Touche Young LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements accountants, substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchaser pursuant to Section 5(e) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.; and
(hv) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, such other documents as the case Representative may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters reasonably request with respect to the financial statements good standing of the Company, the due authorization, execution and certain financial information contained in each Memorandum; provided that issuance of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateissuance of such Additional Securities.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) Date there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers Representatives shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed on behalf of the Company by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Representatives shall have received on the Closing Date an opinion and negative assurance statement of BurnetXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxx & Xxxxxx LLPProfessional Corporation (“WSGR”), Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to substantially in the effect form set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.B.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers Representatives shall have received on each of the date hereof and the Closing Date a certificate of the principal financial officer of the Company dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Representatives containing statements and information with respect to certain financial information included or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum.
(e) The Representatives shall have received on the Closing Date an opinion and negative assurance statement of Xxxxxxx Procter LLP (“Xxxxxxx”), counsel for the Initial Purchasers, dated the Closing Date, in the form and substance satisfactory to the Representatives.
(f) The Representatives shall have received, on each of the date hereof and the Closing Date, a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLPE&Y, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters initial purchasers with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof.
(g) The Securities shall be eligible for clearance and settlement through DTC.
(h) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and the officers (as defined in Rule 16a-1(f) under the Exchange Act) and the directors of the Company relating to restrictions on sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(gi) The Initial Purchasers Representatives’ counsel shall have received on each an executed copy of the date hereof Indenture.
(j) The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date a letterpursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance statement of WSGR, outside counsel for the Company, dated the date hereof or the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion required by Section 5(c) hereof;
(iii) a certificate of the principal financial officer of the Company, dated the Option Closing Date, to the same effect as the certificate required by Section 5(d) hereof;
(iv) an opinion and negative assurance statement of Xxxxxxx, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLPE&Y, independent public accountants for Storm Energy Ltd ("Storm") containing statements accountants, substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(f) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.; and
(hvi) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, such other documents as the case Representatives may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters reasonably request with respect to the financial statements good standing of the Company, the due authorization, execution and certain financial information contained in each Memorandum; provided that authentication of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateexecution and authentication of such Additional Securities.
(ik) Prior A number of shares of Common Stock equal to the Closing Date, (i) sum of the Company and the Trust Maximum Number of Underlying Securities shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory been approved for listing on the New York Stock Exchange, subject to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserofficial notice of issuance.
Appears in 1 contract
Samples: Purchase Agreement (Box Inc)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by the Representatives in their sole discretion of the following conditionsconditions precedent on or prior to the Closing Date:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum (exclusive of any amendment or supplement thereto) provided to the prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final MemorandumTime of Sale Memorandum (exclusive of any amendment or supplement thereto).
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are shall be true and correct on and as of the Time of Sale and on and as of the Closing Date as if made on and that each as of the Closing Date; the statements of the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company and the Guarantors has complied with shall have performed all of the covenants and agreements and satisfied all of the conditions on its their part to be performed or satisfied hereunder on at or before prior to the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsa certificate, dated the Closing Date, Date and signed by the Chief Executive Officer or President of the Company and each Guarantor and the Chief Financial Officer or Chief Accounting Officer of the Company and each Guarantor to the effect set forth in Exhibit A. Such opinion shall be rendered Section 5(a)(i) and 5(a)(ii), and further to the Initial Purchasers at effect that the request representations and warranties of the Company and the Guarantors contained in this Agreement were true and shall so state thereincorrect as of the Time of Sale and are true and correct as of the Closing Date; that the Company and the Guarantors have complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date; and that the sale of the Securities has not been enjoined (temporarily or permanently).
(d) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx Xxxxxx LLP, U.S. outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinRepresentatives.
(e) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Shearman Xxxxx Xxxx & Sterling Xxxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, with respect to such matters as may be reasonably requested by the effect set forth in Exhibit C.Initial Purchasers.
(f) The On the date hereof, the Initial Purchasers shall have received on each of from KPMG LLP, the date hereof and independent registered public accounting firm for the Closing Date a letterCompany, one or more “comfort letters” dated the date hereof or addressed to the Closing Date, as the case may beInitial Purchasers, in form and substance satisfactory to the Representatives, covering the financial information in the Time of Sale Memorandum, the Final Memorandum and other customary matters. In addition, on the Closing Date, the Initial Purchasers shall have received from such accountants a “bring-down comfort letter” dated the Closing Date addressed to the Initial Purchasers, from KPMGin form and substance satisfactory to the Representatives, LLP, independent public accountants for in the Trust and its subsidiaries, containing statements and information form of the type ordinarily included in accountants' "“comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter letter” delivered on the Closing Date date hereof, except that (i) it shall use cover any amendment or supplement to the Final Memorandum and (ii) procedures shall be brought down to a "cut-off date" not date no more than three business 3 days prior to the Closing Date.
(g) The Initial Purchasers Company and the Guarantors shall have received on each of executed and delivered the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beIndenture, in form and substance reasonably satisfactory to the Initial Purchasers, from Deloitte & Touche LLPand the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantors shall have executed and delivered the Registration Rights Agreement, independent public accountants for Storm Energy Ltd ("Storm") containing statements in form and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect substance reasonably satisfactory to the financial statements Initial Purchasers, and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date Initial Purchasers shall use a "cut-off date" not more than three business days prior to the Closing Datehave received such executed counterparts.
(h) The Initial Purchasers shall have received on each sale of the date hereof and the Closing Date a letter, dated the date hereof Securities shall not be enjoined (temporarily or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered permanently) on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such information, documents, letters and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any time on or prior to the Closing Date, (i) which termination shall be without liability on the Company part of any party to any other party, except that Sections 6(g), 8 and the Trust 11 hereof shall have entered into an Amended at all times be effective and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchasersurvive such termination.
Appears in 1 contract
Samples: Purchase Agreement (Brocade Communications Systems Inc)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Issuers in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Issuers’ officers made pursuant to the provisions hereof, to the performance by the Issuers of their covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to The Initial Purchasers shall have received an opinion, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review Ledgewood, P.C., counsel for a possible change that does not indicate the direction of the possible changeIssuers, in form and substance satisfactory to Xxxxx Fargo, to the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that effect set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final MemorandumExhibit A hereto.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each such other opinions of the Company and the Guarantorscounsel, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicableDate, of each of the Company covering regulatory and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct local matters as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatenedXxxxx Fargo shall reasonably request.
(c) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of XxxxXxxxxx Xxxxxx & Xxxxxxx llp, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel Counsel for the Initial Purchasers, dated the Closing Date, with respect to the effect set forth issuance and sale of the Notes and such other related matters as Xxxxx Fargo may reasonably require, and the Issuers shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Ledgewood referred to in Exhibit C.Section 6(a).
(fd) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to Xxxxx Fargo and Counsel for the Initial Purchasers, from KPMG, Xxxxx Xxxxxxxx LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided provided, however, that the letter delivered on the Closing Date letters referenced in clause (i) shall use a "“cut-off date" not more than ” within three business days prior of the date of such letter. References to the Closing DateOffering Memorandum in this paragraph (d) with respect to any letter referred to above shall include any amendment or supplement thereto at the date of any such letter.
(i) None of the Issuers nor any of their subsidiaries nor any other Guarantor, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Offering Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in each Memorandum, there shall not have been any change in the capital stock or long-term debt of any Issuer and its subsidiaries or any other Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, stockholders’ equity, earnings, condition (financial or otherwise), results of operations or management of any Issuer and its subsidiaries or any other Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of Xxxxx Fargo, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(f) None of the information set forth in the sections of the Offering Memorandum, or documents incorporated by reference therein, entitled “Use of Proceeds,” “Capitalization,” “Executive Compensation,” “Certain Relationships and Related Transactions” and “Description of Other Indebtedness” shall have changed, nor shall there have been any change in the information with respect to the directors and officers of the Issuers, if the effect of any such change, individually or in the aggregate, in the sole judgment of Xxxxx Fargo make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described in the Offering Memorandum, exclusive of any amendment or supplement thereto.
(g) The Initial Purchasers shall have received on each of the date hereof and a certificate, dated the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, and in form and substance satisfactory to the Initial PurchasersXxxxx Fargo, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Chairman of the Managing Board, the President or a Vice President and the Chief Financial Officer of the General Partner as to the financial statements accuracy of the representations and certain financial information contained warranties of the Issuers in each Memorandumthis Agreement at and as of the Closing Date; provided that the letter delivered Issuers have performed all covenants and agreements and satisfied all conditions on the Closing Date shall use a "cut-off date" not more than three business days their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Sections 6(e), (f) and (j) hereof.
(h) The Initial Purchasers shall have received on each of the date hereof and a certificate, dated the Closing Date and in form and substance satisfactory to Xxxxx Fargo, of the Chairman of the Board, the President or a letterVice President and the Chief Financial Officer of the Finance Co as to the accuracy of the representations and warranties of the Finance Co in this Agreement at and as of the Closing Date; that the Finance Co has performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Sections 6(e), (f) and (j) hereof.
(i) The Initial Purchasers shall have received a certificate, dated the date hereof Closing Date and in form and substance satisfactory to Xxxxx Fargo, of the Chairman of the Board, the President or a Vice President and the Chief Financial Officer of each Guarantor, or the Closing DateGeneral Partner of such Guarantor, as the case may be, in form and substance satisfactory as to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information accuracy of the type ordinarily included representations and warranties of such Guarantor in accountants' "comfort letters" to underwriters with respect to the financial statements this Agreement at and certain financial information contained in each Memorandum; provided that the letter delivered on as of the Closing Date shall use a "cut-off date" not more than three business days Date; that such Guarantor has performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(e) hereof.
(ij) Prior Subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Partnership’s other debt securities by any “nationally recognized statistical rating agency,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Partnership’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(k) The Notes shall be eligible for clearance and settlement through the Depository Trust Company.
(l) On or before the Closing Date, (i) the Company Initial Purchasers and Counsel for the Trust Initial Purchasers shall have entered into an Amended and Restated Net Profit Interest Agreement that is received such further certificates, documents or other information as they may have reasonably satisfactory to requested from the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial PurchaserIssuers.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers hereunder to purchase and pay for the Firm Securities on the Closing Date are subject to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) Subsequent the representations and warranties of the Company contained herein are true and correct on and as of the Closing Date as if made on and as of the Closing Date and the Company shall have complied with all agreements and all conditions on its part to the execution and delivery of this Agreement and be performed or satisfied hereunder at or prior to the Closing Date:;
(ib) there on or after the date hereof no downgrading shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the Company's debt securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act; and;
(i) none of the Company, nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Time of Sale Information 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, otherwise than as set forth or contemplated in the Time of Sale Information that would reasonably expected to have a Material Adverse Effect, and (ii) since the respective dates as of which information is given in the Time of Sale Information (excluding any amendment or supplement thereto after the date hereof), there shall not have occurred been (A) 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 conditiongeneral affairs, management, financial position, stockholders' equity or otherwise, or in the earnings, business or results of operations of the Trust Company and its subsidiaries, taken as a whole, from that otherwise than as set forth or contemplated in the Final Memorandum provided Time of Sale Information, or (B) any suspension or material limitation of trading in the capital stock of the Company on the New York Stock Exchange, the effect of which, in any case described in clause (i) or (ii), in the judgment of the Representatives makes it impracticable or inadvisable to prospective purchasers proceed with the offering or the delivery of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market on the Securities Closing Date on the terms and in the manner contemplated in the Time of Sale Information and the Final Memorandum.;
(bd) The the Initial Purchasers shall have received on and as of the Closing Date a certificate from each of an executive officer of the Company and Company, with specific knowledge about the GuarantorsCompany's financial matters, dated satisfactory to the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors Initial Purchasers to the effect set forth in Section 5(a)(iSections 6(a), 6(b) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.6(c);
(ce) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetWeil, Xxxxxxxxx Gotshal & Xxxxxx Manges LLP, Canadian outside counsel for the Company Company, shall have furnisxxx xx the Initial Purchasers its written opinion and the Guarantorsits letter, each dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMGsubstantially in the forms of Exhibits B-1 and B-2 hereto;
(f) on the date hereof and also on the Closing Date, LLPD&T shall have furnished to the Initial Purchasers letters, independent public accountants for dated the Trust respective dates of delivery thereof, in form and its subsidiariessubstance reasonably satisfactory to the Initial Purchasers, containing statements and information of the type ordinarily customarily included in accountants' accountants "comfort letters" to underwriters initial purchasers with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.;
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or also on the Closing Date, as BDO shall have furnished to the case may beInitial Purchasers letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily customarily included in accountants' accountants "comfort letters" to underwriters initial purchasers with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.;
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or also on the Closing Date, as PwC shall have furnished to the case may beInitial Purchasers letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily customarily included in accountants' accountants "comfort letters" to underwriters initial purchasers with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.;
(i) Prior to on the date hereof and also on the Closing Date, (i) the Company and the Trust Snyder shall have entered into an Amended furnished to the Initial Purchasers letters, xxxxx the respective dates of delivery thereof, in form and Restated Net Profit Interest Agreement that is substance reasonably satisfactory to the Initial Purchaser Purchasers, containing statements and information of the type customarily included in accountants "comfort letters" to initial purchasers with respect to the financial statements and certain financial information contained in the Offering Memorandum;
(iij) Harvest Sask Energy Trust Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Initial Purchasers, shall hxxx xxxnisxxx to the Initial Purchasers their written opinion, dated the Closing Date, in form and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably substance satisfactory to the Initial PurchaserPurchasers;
(k) the "lock-up" agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company and other persons identified on Exhibit A-1 relating to sales and certain other dispositions of shares of Common Stock or certain other securities of the Company, shall have been delivered to you on or before the date hereof and shall be in full force and effect;
(l) the Securities shall have been approved for trading on PORTAL, subject only to notice of issuance at or prior to the time of purchase;
(m) the Initial Purchasers shall have received a counterpart of the Registration Rights Agreement that shall have been executed and delivered by a duly authorized officer of the Company;
(n) on or prior to the Closing Date the Company shall have furnished to the Initial Purchasers such further certificates and documents as the Initial Purchasers or their counsel shall reasonably request;
(o) on or after the date hereof there shall not have occurred any of the following: (i) trading generally shall have been suspended or materially limited on or by the New York Stock Exchange, (ii) trading of any securities of or guaranteed by the Company shall have been suspended on any exchange or in any over the counter market, (iii) a general moratorium on commercial banking activities shall have been declared by either Federal or New York State authorities, (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the offering or the delivery of the Securities being issued at such Closing Date on the terms and in the manner contemplated in the Time of Sale Information or to enforce contracts for the sale of the Securities; and
(p) the Company shall have obtained approval from the NYSE to list its shares on the NYSE and the Reorganization Transaction shall have been consummated in all respects. The obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to you on the Option Closing Date of such documents as you may reasonably request, including the due authorization, execution, authentication and issuance of the Additional Securities and other matters related to the execution, authentication and issuance of the Additional Securities.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities on the Closing Date are Original Notes, as provided for in this Agreement, shall be subject to satisfaction of the following conditionsconditions prior to or concurrently with such purchase:
(a) Subsequent to All of the execution representations and delivery warranties of the Issuers contained in this Agreement shall be true and correct in all material respects on the date of this Agreement and on the Closing Date (other than any such representations or warranties which are qualified as to materiality, which representations and warranties shall be accurate in all respect on the date hereof and on the Closing Date). Each of the Issuers shall have in all material respects performed or complied with all of the agreements and covenants contained in this Agreement and required to be performed or complied with by it on or prior to the Closing Date:.
(ib) there The Offering Memorandum shall not have occurred any downgrading, nor shall any notice have been given printed and copies distributed to the Initial Purchaser on the date of any intended this Agreement or potential downgrading at such later date as the Initial Purchaser may determine. No stop order suspending the qualification or of any review for a possible change that does not indicate the direction exemption from qualification of the possible changeOriginal Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency that would, as of the Closing Date, prevent the issuance and sale of the Original Notes or consummation of the Exchange Offer; except as disclosed in the rating accorded Offering Memorandum, no action, suit or proceeding shall have been commenced and be pending against or affecting or, to the Company best knowledge of the Issuers, threatened against either of the Issuers or any of their respective subsidiaries before any court or arbitrator or any governmental body, agency or official that could reasonably be expected to have a Material Adverse Effect; and no stop order preventing the Guarantors use of the Preliminary Offering Memorandum or the Offering Memorandum, or any amendment or supplement thereto, or any order asserting that any of the securities transactions contemplated by this Agreement are subject to the registration requirements of the Act shall have been issued.
(d) As of the date of the latest balance sheet presented in the Offering Memorandum, neither the Company nor any of its subsidiaries had any material liabilities or obligations, direct or contingent, that were required in accordance with GAAP, to be set forth in the Company's consolidated balance sheet as of such date or in the notes thereto set forth in the Offering Memorandum not so set forth. Since the date of the latest balance sheet presented in the Offering Memorandum, except as set forth or contemplated in the Offering Memorandum, (a) neither of the Issuers has (1) incurred any liabilities or obligations, direct or contingent, that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or (2) entered into any material transaction not in the ordinary course of business, (b) there has not been any event or development in respect of the business or condition (financial or other) of the Issuers that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (c) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock and (d) there has not been any material change in the long-term debt of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; andits subsidiaries.
(iie) there The Initial Purchaser shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations received certificates from each of the Trust and Issuers, dated the Closing Date, signed by two authorized officers of each of the Issuers confirming, as of the Closing Date, to its subsidiariesknowledge, taken as a whole, from that the matters set forth in the Final Memorandum provided to prospective purchasers paragraphs (a), (b), (c) and (d) of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandumthis Section 8.
(bf) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate from each of the Company and the Guarantors, opinions dated the Closing Date and signed by an executive officerDate, trustee or managing partner, as applicableaddressed to the Initial Purchaser, of each of the Company and the Subsidiary Guarantors (i) Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel to the effect set forth in Section 5(a)(iIssuers, (ii) and Xxxxxxx Brignone, special Nevada counsel to the effect that Issuers, (iii) Sidley Xxxxxx Xxxxx & Xxxx LLP, special regulatory counsel to the representations Issuers, (iv) Xxxxx X. Xxxxxxx, general counsel to the Issuers, and warranties (v) Xxxxxx and Xxxxxx, Cayman Islands counsel to Issuers, each substantially in the form of each of Exhibits X-0, X-0, X-0, X-0 and A-5 attached hereto, with such reasonable assumptions and qualifications satisfactory to the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatenedInitial Purchaser.
(cg) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing DateDate of Skadden, to the effect set forth in Exhibit A. Such opinion shall be rendered Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinPurchaser.
(dh) The On the date hereof, the Initial Purchasers Purchaser shall have received on the Closing Date an opinion a "comfort letter" from each of Xxxx, Weiss, Rifkind, Xxxxxxx Deloitte & Xxxxxxxx Touche LLP and PricewaterhouseCoopers LLP, U.S. counsel independent public accountants for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letterIssuers, dated the date hereof or of this Agreement, addressed to the Closing Date, as the case may be, Initial Purchaser and in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust Purchaser and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect counsel to the financial statements and certain financial information contained in each Memorandum; provided that Initial Purchaser. In addition, the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers Purchaser shall have received on "bring-down comfort letter" from each of the date hereof Deloitte & Touche LLP and the Closing Date a letterPricewaterhouseCoopers LLP, dated the date hereof or as of the Closing Date, as addressed to the case may be, Initial Purchaser and in form and substance satisfactory to the Initial PurchasersPurchaser and counsel to the Initial Purchaser.
(i) Each of the other Note Documents shall have been executed and delivered and the Initial Purchaser shall have received copies, from Deloitte conformed as executed, thereof.
(j) Skadden, Arps, Slate, Xxxxxxx & Touche Xxxx LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements counsel to the Initial Purchaser, shall have been furnished with such documents as they may reasonably request to enable them to review or pass upon the matters referred to in this Section 8 and information in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the type ordinarily included representations, warranties or conditions contained in accountants' "comfort letters" this Agreement.
(k) The Notes shall be eligible for trading in PORTAL upon issuance. All agreements set forth in the representation letter of the Issuers to underwriters with respect DTC relating to the financial statements approval of the Notes by DTC for "book-entry" transfer shall have been complied with. If any of the conditions specified in this Section 8 shall not have been fulfilled when and certain financial information contained in each Memorandum; provided that as required by this Agreement to be fulfilled (or waived by the letter delivered Initial Purchaser), this Agreement may be terminated by the Initial Purchaser on notice to the Closing Date shall use a "cut-off date" not more than three business days Issuers and at any time at or prior to the Closing Date.
(h, and such termination shall be without liability of any party to any other party. Notwithstanding any such termination, the provisions of Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect. The Initial Purchasers shall have received on each documents required to be delivered by this Section 8 will be delivered at the office of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to counsel for the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered Purchaser on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Wh Capital Corp)
Conditions to the Initial Purchasers’ Obligations. The several respective obligations of each Initial Purchaser and the Initial Purchasers Collateral Agent pursuant to purchase and pay for the Securities on Section 2.2 in connection with the Closing Date are subject to the satisfaction, or waiver in accordance with this Agreement, of the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to conditions on or before the Closing Date, both before and after giving effect to the Closing:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors Party contained in this Agreement are any Transaction Document shall be true and correct as of the Closing Date (unless expressly made as of an earlier date herein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part required to be performed by any Company Party or satisfied hereunder any on or before prior to the Closing Date pursuant to any Transaction Document (other than the obligations set forth in Section 2.2 to be performed at the Closing) shall have been performed;
(iii) the items that each Company Party is required to deliver on or prior to the Closing Date pursuant to Section 2.3(a) shall have been delivered;
(iv) there shall exist no Default or Event of Default;
(v) there shall be no breach of any obligation, covenant or agreement of any Company Party under the Transaction Documents and no existing event which, with the passage of time or the giving of notice, would constitute such a breach;
(vi) no Material Adverse Effect shall have occurred from the date hereof through the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.;
(cvii) The Initial Purchasers shall have received on from the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated date hereof through the Closing Date, to trading in the effect set forth in Exhibit A. Such opinion shares of Common Stock shall be rendered to not have been suspended by the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof Commission or the Closing DatePrincipal Trading Market for such Common Stock and, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days at any time prior to the Closing Date., trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on Securities of the Company whose trades are reported by such service or on any Trading Market for such Securities, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Initial Purchaser, and without regard to any factors unique to such Initial Purchaser, makes it impracticable or inadvisable to purchase the Purchased Securities at the Closing;
(gviii) The Initial Purchasers shall have received on each the Company meets the current public information requirements under Rule 144 in respect of the date hereof Warrants, the Commitment Shares and the Closing Date Issuable Securities;
(ix) the Company has duly submitted a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information “Listing of the type ordinarily included in accountants' "comfort letters" to underwriters Additional Shares Notification Form” with The Nasdaq Stock Market LLC with respect to each issuance of Transaction Securities pursuant to this Agreement; and
(x) any other conditions contained herein or in the financial statements and certain financial information contained in each Memorandum; provided other Transaction Documents, including delivery of the items that the letter delivered any Company Party is required to deliver on the Closing Date shall use a "cut-off date" not more than three business days or prior to the Closing DateDate pursuant to Section 2.3.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Offered Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors its subsidiaries by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Offered Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Guarantors, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has have complied with all of the agreements and satisfied all of the conditions on its their part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx Xxxxxx & Xxxxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. A hereto. Such opinion shall be rendered to the Initial Purchasers Representative at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx White & Xxxxxxxx Case LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to covering such matters as requested by the effect set forth in Exhibit C.Representative.
(fe) The Representative, on behalf of the Initial Purchasers Purchasers, shall have received from Ernst & Young, LLP as public accountants for the Company, a letter, on each of the date hereof and the Closing Date a letterDate, dated the date hereof or the Closing Date, as the case may be, in each case in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiariesRepresentative, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained included or incorporated by reference in each the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(gf) The Initial Purchasers shall have received from Netherland Xxxxxx & Associates, the Company’s independent petroleum engineers, a letter or letters dated, respectively, on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial PurchasersRepresentative, from Deloitte & Touche LLPeach stating, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information as of the type ordinarily included date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which information regarding the natural gas and oil reserves and future net cash flows is given in accountants' "comfort letters" the Time of Sale Memorandum and the Final Memorandum, as of the date not more than five days prior to underwriters the date of such letter), the conclusions and findings of such firm with respect to the financial statements natural gas and certain financial information contained in each Memorandum; provided that oil reserves of the letter delivered on Company and such other matters as the Closing Date shall use a "cut-off date" not more than three business days Representative reasonably may request.
(g) On or prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust Guarantors shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory furnished to the Initial Purchaser Purchasers such further certificates and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to documents as the Initial PurchaserPurchasers may reasonably request.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date Purchaser are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall the Company have received any notice have been given from any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the Act of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities ActCompany; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities Disclosure Package that, in your judgmentthe judgment of the Initial Purchaser, is material and adverse and that makes it, in your judgmentthe judgment of the Initial Purchaser, impracticable or inadvisable to proceed with the offer, sale and delivery of the securities, or market the Securities on the terms and in the manner contemplated in the Final Memorandumthis agreement and the Disclosure Package.
(b) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement that are not qualified by materiality are true and correct in all material respects, and that the representations and warranties of the Company contained in this Agreement that are qualified by materiality are true and correct, in each case, as of the Closing Date Date, and that each of the Company and the Guarantors has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion and a negative assurance letter of Burnet, Xxxxxxxxx Xxxxxxxx & Xxxxxx Xxxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to on Schedule II. Additionally, Xxxxxxx Xxxxxxxx, General Counsel of the Initial Purchasers at the request Company, and other local counsel of the Company and shall provide opinions, dated the Guarantors and Closing Date, as the Initial Purchaser shall so state thereinreasonably request.
(d) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion and a negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxx & Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the GuarantorsInitial Purchaser, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered form and substance satisfactory to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinPurchaser.
(e) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Shearman & Sterling LLPreceived, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date Date, a letter, letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersPurchaser, from KPMG, KPMG LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters Initial Purchasers with respect to the financial statements and certain financial information contained in each the Disclosure Package and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Datehereof.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given received of (A) any intended or potential downgrading or of (B) any review for a or possible change that does not indicate the direction of the a possible change, in the rating accorded the Company or any of the Guarantors or any of the Company's securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any material adverse change, or any development involving which could reasonably be expected to result in a prospective material adverse change, in the financial condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Offering Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(iclauses (a)(i) and (ii) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetWilliam G. von Glahn, Xxxxxxxxx & Xxxxxx LLPEsq., Canadian counsel for the Company Senior Vice President and the GuarantorsGenerax Xxxxxxx xx Xxx Xxxliams Companies, Inc., dated the Closing Date, with such xxxxxxxxns and qualifications as shall be agreed by the Initial Purchasers, to the effect set forth in Exhibit A. Such The opinion of William G. von Glahn, Esq. described in Exhibit A shall be rendered to the Initial rxxxxxxx xx xxx Xxxxxal Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx from Andrews & Xxxxxxxx Kurth LLP, U.S. special counsel for the Company and the GuarantorsCompany, dated the Closing Date, with such exceptions and qualifications as shall be agreed by the Initial Purchasers, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.B.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Davis Polk & Sterling LLPWardwell, U.S. counsel for the Initial Purchasers, dated dxxxx xxx Xlosxxx Xxxx, covering the Closing Datematters referred to in subparagraph (ix) of Exhibit A, and such other matters as shall be agreed by the Initial Purchasers. With respect to subparagraph (ix) of Exhibit A, Davis Polk & Wardwell may state that their opinion and beliex xxx xxxxd upon their participation in the preparation of the Offering Memorandum (excluding any documents incorporated by reference therein) and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. Davis Polk & Wardwell may also state that they have relied solely on xhe xxxxxxx of William G. von Glahn, Esq., as to matters relating to the effect set forth in Exhibit C.rexxxxxxxx xx xxx Xxxxany by the Federal Energy Regulatory Commission.
(f) The Initial Purchasers shall have received on each of the date hereof and on the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beletters, in form and substance satisfactory to the Initial Purchasers, from KPMG, Ernst & Young LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers and the Company shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have validly entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and Registration Rights Agreement, substantially in the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserform of Exhibit C hereto.
Appears in 1 contract
Samples: Purchase Agreement (Transcontinental Gas Pipe Line Corp)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the Company’s securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an Xxxxx X. Xxxxxxx, as chief executive officer, trustee or managing partnerand Xxxxxx Xxxxxx, as applicablechief financial officer, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of each of the Company and each of the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and each of the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion from Xxxxxx X. Xxxx, General Counsel of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the GuarantorsCompany, dated the Closing Date, an opinion in form and substance reasonably satisfactory to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinUnderwriters.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxxfrom Cleary, WeissGottlieb, RifkindXxxxx & Xxxxxxxx, Xxxxxxx & Xxxxxxxx LLP, U.S. special counsel for to the Company and the Guarantors, dated the Closing Date, to the effect set forth an opinion in Exhibit B. Such opinion shall be rendered form and substance reasonably satisfactory to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinPurchasers.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Cravath, Swaine & Sterling Xxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit C.Initial Purchasers.
(f) The Initial Purchasers shall have received received, on each of the date hereof and the Closing Date Date, a letter, letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, PricewaterhouseCoopers LLP, independent certified public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into each Memorandum, and only if permitted, by Statement of Auditing Standard No. 72; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(g) The Initial Purchasers shall have received on “lock up” agreements, each substantially in the form of Exhibit A hereto, between you and the directors and executive officers of the date hereof Company, relating to sales and the Closing Date a lettercertain other dispositions of shares of Common Stock or certain other securities, dated delivered to you on or before the date hereof or the Closing Datehereof, as the case may be, shall be in form full force and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered effect on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Company shall have filed a “Notification Form: Listing of Additional Shares” and any required supporting documentation relating to the Underlying Securities with the NASDAQ Stock Market. The several obligations of the Initial Purchasers shall have received to purchase Additional Securities hereunder are subject to the delivery to you on each of the date hereof and the Option Closing Date a letter, dated the date hereof or the Closing Date, of such documents as the case you may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters reasonably request with respect to the financial statements good standing of the Company, the due authorization, execution and certain financial information contained in each Memorandum; provided that authentication of the letter delivered Additional Securities to be sold on the Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateexecution and authentication of such Additional Securities.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given received of (A) any intended or potential downgrading or of (B) any review for a or possible change that does not indicate the direction of the a possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors Xxxxxxxx by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any material adverse change, or any development involving which could reasonably be expected to result in a prospective material adverse change, in the financial condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a wholeCompany or Xxxxxxxx, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Offering Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(iclauses (a)(i) and (ii) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge after due inquiry as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetXxxxx Xxxxxx, Xxxxxxxxx & Xxxxxx LLPEsq., Canadian counsel for the Company Senior Vice President and the Guarantors, General Counsel of Xxxxxxxx dated the Closing Date, with such exceptions and qualifications as shall be agreed by the Initial Purchasers, to the effect set forth in Exhibit A. Such The opinion of Xxxxx Xxxxxx, Esq. described in Exhibit A shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxxfrom Xxxxxx, Weiss, Rifkind, Xxxxxxx Xxxx & Xxxxxxxx LLP, U.S. special counsel for the Company and the GuarantorsCompany, dated the Closing Date, with such exceptions and qualifications as shall be agreed by the Initial Purchasers, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.B.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Xxxxx Xxxx & Sterling LLPXxxxxxxx, U.S. counsel for the Initial Purchasers, dated the Closing Date, covering the matters referred to in paragraph 9 of Exhibit A, and such other matters as shall be agreed by the Initial Purchasers. With respect to paragraph 9 of Exhibit A, Xxxxx Xxxx & Xxxxxxxx may state that their opinion and belief are based upon their participation in the preparation of the Offering Memorandum (excluding any documents incorporated by reference therein) and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. Xxxxx Xxxx & Xxxxxxxx may also state that they have relied solely on the opinion of Xxxxx Xxxxxx, Esq., as to matters relating to the effect set forth in Exhibit C.regulation of the Company by the Federal Energy Regulatory Commission.
(f) The Initial Purchasers shall have received on each of the date hereof and on the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beletters, in form and substance satisfactory to the Initial Purchasers, from KPMG, Ernst & Young LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers and the Company shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have validly entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and Registration Rights Agreement, substantially in the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserform of Exhibit C hereto.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, prospects or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum as of the date of this Agreement provided to the prospective purchasers of the Securities that, in your the Representative’s judgment, is material and adverse and that makes it, in your the Representative’s judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate certificates from each of the Issuer, the Company and the Guarantorseach Guarantor, dated the Closing Date and signed by an executive officerofficer of each of the Issuer, trustee or managing partnerthe Company and such Guarantor, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Issuer, the Company and the Guarantors or such Guarantor contained in this Agreement were true and correct as of the Time of Sale and are true and correct as of the Closing Date and that each of the Issuer, the Company and the Guarantors or such Guarantor has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx Xxxxxx LLP, Canadian outside counsel for the Issuer, the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx XxXxxxxxx LLP, U.S. outside counsel for the Issuer, the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Xxxxxx, Xxxxxx & Sterling LLPXxxxxx, U.S. outside regulatory counsel for the Initial PurchasersCompany, Consolidated Communications of Pennsylvania, LLC and Consolidated Communications Enterprise Services Inc., dated the Closing Date, to the effect set forth in Exhibit C.C. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(f) The Initial Purchasers shall have received on the Closing Date an opinion of Naman, Howell, Xxxxx & Xxx, PLLC, outside counsel for Consolidated Communications of Texas Company, Consolidated Communications of Fort Bend Company and Consolidated Communications Services Company, dated the Closing Date, to the effect set forth in Exhibit D. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(g) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxxxx, White & Xxxxxx LLP, outside counsel for the Issuer, the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit E. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(h) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, counsel for the Initial Purchasers, dated the Closing Date.
(i) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or and the Closing Date, as the case may berespectively, in form and substance satisfactory to the Initial Purchasers, from KPMG, Ernst & Young LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the Parent’s financial statements and certain financial information of Parent contained or incorporated by reference in each the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" not ” no more than three business days prior to the Closing Date.
(gj) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or and the Closing Date, as the case may berespectively, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche Xxxx Xxxxx LLP, independent public accountants for Storm Energy Ltd ("Storm") accountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the Enventis’ financial statements and certain financial information of Enventis contained or incorporated by reference in each the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" not ” no more than three business days prior to the Closing Date.
(hk) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or and the Closing Date, as the case may berespectively, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, Xxxxx Xxxxxxxx LLP, independent public accountants for EnCana Corporation ("EnCana")accountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the Enventis’ financial statements and certain financial information of Enventis contained in each the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" not ” no more than three business days prior to the Closing Date.
(l) Finance Co. and the Trustee shall have executed and delivered the Indenture, and the Initial Purchasers shall have received a copy thereof.
(m) Finance Co. shall have executed and delivered a Registration Rights Agreement in form and substance reasonably satisfactory to the Representative, including all of the provisions described in the Time of Sale Memorandum and such other provisions as are customary for registration rights agreements in similar transactions. (n) (i) Prior Finance Co., the Trustee and the Escrow Agent shall have executed the Escrow Agreement and the Initial Purchasers shall have received a copy thereof, executed by the Issuer, the Trustee and the Escrow Agent and such agreement shall be in full force and effect on and as of the Closing Date; (ii) the Escrow Property equal to the Escrow Redemption Amount shall have been deposited with the Escrow Agent solely in accordance with the Escrow Agreement; and (iii) the Trustee shall have a first-priority security interest in the Escrow Account and the Escrow Property.
(o) The Issuer shall have taken all action required to be taken by it for the Securities to be eligible for clearance and settlement through DTC, it being understood that the Initial Purchasers shall obtain relevant CUSIP numbers for the Notes.
(p) The Initial Purchasers shall have received on the Closing Date certificates, dated the Closing Date, executed by the Secretary of the Issuer, the Company and each Guarantor, certifying such customary matters as the Initial Purchasers may reasonably request.
(q) The Initial Purchasers shall have received on the Closing Date certificates evidencing (i) the existence or good standing of the Issuer, the Company and each Guarantor issued by the Secretary of State (or applicable office) of the jurisdiction in which the Issuer, the Company or such Guarantor is organized as of a date within five business days prior to the Time of Sale and (ii) the qualification by the Issuer, the Company and each Guarantor as a foreign corporation in good standing issued by the Secretary of State (or applicable office) of each of the jurisdictions in which the Issuer, the Company or such Guarantor operates as of a date within five business days prior to the Time of Sale, in each case with an electronic mail bring down on the Closing Date.
(r) On or prior to the Closing Date, (i) the Issuer, the Company and the Trust Guarantors shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory furnished to the Initial Purchaser Purchasers such further certificates and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to documents as the Initial PurchaserPurchasers may reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Consolidated Communications Holdings, Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities Material Adverse Change that, in your judgment, is material and adverse and that makes it, in your judgment, it impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct in all material respects (except to the extent already qualified by materiality) on and as of the Time of Sale and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects (except to the extent already qualified by materiality) on and as of the date made and on and as of the Closing Date; the Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(c) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality) as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(cd) The Initial Purchasers shall have received on the Closing Date (i) an opinion and negative assurance letter of BurnetXxxxx & XxXxxxx, Xxxxxxxxx & Xxxxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, (ii) an opinion of Xxxx Xxxxxx, general counsel of the Company and (iii) an opinion of Xxxxx & Xxxxxxx LLP, Indiana counsel to the effect set forth Company and certain Guarantors, in Exhibit A. each case, in form and substance satisfactory to Xxxxxx Xxxxxxx & Co. Incorporated. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Shearman Xxxxxx Xxxxxx & Sterling LLPXxxxxxx llp, U.S. counsel for the Initial Purchasers, dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit C.Xxxxxx Xxxxxxx & Co. Incorporated.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, PricewaterhouseCoopers LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days the date hereof.
(g) The Company and the Guarantors shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof.
(h) The Notes shall be eligible for clearance and settlement through the Depository Trust Company, Clearstream Banking and the Euroclear System.
(i) Subject to the terms of the Intercreditor Agreement, the Company and the Guarantors shall have entered into the Security Agreement, the perfection certificate related thereto and the other Security Documents and Xxxxxx Xxxxxxx & Co. Incorporated shall have received counterparts, conformed as executed, thereof.
(j) Xxxxxx Xxxxxxx & Co. Incorporated shall have received the results of recent UCC lien searches (or lien searches under the personal property security legislation applicable to the Personal Property Collateral, as applicable) for each Issuer in each of the jurisdictions in which any Issuer is located and, if reasonably requested by Xxxxxx Xxxxxxx & Co. Incorporated, tax and judgment lien searches for the Company in each jurisdiction in which material assets of the Company or any of its subsidiaries is located, and such searches shall reveal no liens on any of the assets of the Company or any of its subsidiaries other than Permitted Liens.
(k) Subject to the terms of the Intercreditor Agreement, any delivery to the Notes Collateral Agent of certificates representing shares of capital stock required to be pledged as Collateral shall be delivered to the Notes Collateral Agent and any UCC financing statement required by the Security Agreement to be filed on or prior to the Closing Date, in order to create in favor of the Notes Collateral Agent for its benefit and the benefit of the Trustee and the holders of the Notes, a perfected first-priority lien (subject to Permitted Liens (as defined in the Indenture)) and security interest in the Collateral which can be perfected by the making of such filings prior and superior to the right of any other person, shall be in proper form for filing or delivered, as applicable.
(l) The sale of the Securities shall not be enjoined (temporarily or permanently) on the Closing Date.
(gm) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof On or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (ia) the Company and the Trust shall have entered into the New Credit Facility and the Representatives shall have received an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser executed copy thereof and (iib) Harvest Sask Energy Trust and the Trust Representatives shall have entered into an Amended received satisfactory evidence that the Company has repaid all outstanding indebtedness under the Existing Credit Facility and Restated Net Profit Interest Agreement that is reasonably satisfactory to all liens encumbering the Initial Purchasercollateral secured by the Existing Credit Facility have been released.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers Purchaser to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the Company’s securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Preliminary Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of BurnetGxxxxx, Xxxxxxxxx Dxxx & Xxxxxx Cxxxxxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers Purchaser at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of XxxxRxxxxxx X. Xxxxxxx, WeissVice President, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for General Counsel and Secretary of the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers Purchaser at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Shearman Dxxxx Xxxx & Sterling LLPWxxxxxxx, U.S. counsel for the Initial PurchasersPurchaser, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers Purchaser shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersPurchaser, from KPMG, LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into each Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(g) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between the Initial Purchasers shall have received on each Purchaser and certain shareholders, officers and directors of the date hereof Company relating to sales and certain other dispositions of shares of common stock or certain other securities, delivered to the Closing Date a letter, dated Initial Purchaser on or before the date hereof or hereof, shall be in full force and effect on the Closing Date, as . The obligation of the case may be, in form and substance satisfactory Initial Purchaser to purchase Additional Securities hereunder is subject to the delivery to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information Purchaser on the applicable Option Closing Date of the type ordinarily included in accountants' "comfort letters" to underwriters such documents as it may reasonably request with respect to the financial statements good standing of the Company, the due authorization, execution and certain financial information contained in each Memorandum; provided that authentication of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateexecution and authentication of such Additional Securities.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Atlantic Coast Airlines Holdings Inc)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent Except as contemplated by the Time of Sale Memorandum and the Final Memorandum, subsequent to the execution and delivery of this Agreement and prior subsequent to the Closing Date:
(i) respective dates as of which information is given in the Time of Sale Memorandum and the Final Memorandum, there shall not have occurred been any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any changeMaterial Adverse Change, or any development involving that would reasonably be expected to result in a prospective changeMaterial Adverse Change (whether or not arising in the ordinary course of business), that, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your Representative’s judgment, is material and adverse and that makes it, in your judgment, impracticable it impractical or inadvisable to market offer or deliver the Securities on the terms and in the manner contemplated in the Time of Sale Memorandum and in the Final Memorandum.
(b) The Initial Purchasers Representative shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed on behalf of the Company by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Representative shall have received on the Closing Date an opinion and negative assurance statement of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation (“WSGR”), outside counsel for the Company, dated the Closing Date, substantially in the form set forth in Exhibit B.
(d) The Representative shall have received on the Closing Date an opinion of BurnetXxxxxxxx & Xxxxxxxx LLP (“Xxxxxxxx & Xxxxxxxx”), Xxxxxxxxx & Xxxxxx LLP, Canadian intellectual property counsel for the Company and the GuarantorsCompany, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinRepresentative.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers Representative shall have received on each of the date hereof and the Closing Date a certificate of the principal financial officer of the Company dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Representative containing statements and information with respect to certain financial information included or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum.
(f) The Representative shall have received on the Closing Date an opinion and negative assurance statement of Xxxxxxx Procter LLP (“Xxxxxxx”), counsel for the Initial Purchasers, dated the Closing Date, in the form and substance satisfactory to the Representative.
(g) The Representative shall have received, on each of the date hereof and the Closing Date, a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLPBDO, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters initial purchasers with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof.
(h) The Securities shall be eligible for clearance and settlement through DTC.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representative and the officers (as defined in Rule 16a-1(f) under the Exchange Act) and the directors of the Company relating to restrictions on sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representative on or before the date hereof (each a “Lock-Up Agreement” and collectively the “Lock-Up Agreements”), shall be in full force and effect on the Closing Date.
(gj) The Initial Purchasers Representative’s counsel shall have received on each an executed copy of the date hereof Indenture.
(k) The Representative shall have received a copy of the amendment, in form and substance satisfactory to the Representative, to the Loan and Security Agreement, dated July 9, 2020, as amended, by and between the Company and Silicon Valley Bank.
(l) The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to the Representative on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date a letterpursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance statement of WSGR, outside counsel for the Company, dated the date hereof or the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion required by Section 5(c) hereof;
(iii) an opinion of Xxxxxxxx & Xxxxxxxx, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) a certificate of the principal financial officer of the Company, dated the Option Closing Date, to the same effect as the certificate required by Section 5(e) hereof;
(v) an opinion and negative assurance statement of Xxxxxxx, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(f) hereof;
(vi) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLPBDO, independent public accountants for Storm Energy Ltd ("Storm") containing statements accountants, substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(g) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.; and
(hvii) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, such other documents as the case Representative may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters reasonably request with respect to the financial statements good standing of the Company, the due authorization, execution and certain financial information contained in each Memorandum; provided that authentication of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateexecution and authentication of such Additional Securities.
(im) Prior A number of shares of Common Stock equal to the Closing Date, (i) sum of the Company and the Trust Maximum Number of Underlying Securities shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory been approved for listing on NASDAQ, subject to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserofficial notice of issuance.
Appears in 1 contract
Samples: Purchase Agreement (Cutera Inc)
Conditions to the Initial Purchasers’ Obligations. The several ------------------------------------------------- obligations of the Initial Purchasers to purchase and pay for hereunder shall be subject, in the Securities on the Closing Date are subject Initial Purchasers' discretion, to the following additional conditions:
(a) The representations and warranties of the Issuers contained in this Agreement shall be true and correct as of the date hereof and as of the Closing Date; and the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(b) The sale of the Securities by the Issuers hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(c) Subsequent to the execution date as of which information is given in the Final Offering Memorandum, except in each case as described in or as contemplated by the Final Offering Memorandum, the Company and delivery the Guarantors shall not have incurred any liabilities or obligations, direct or contingent (other than in the ordinary course of business), that are material to the Company and the Guarantors taken as a whole or entered into any transactions not in the ordinary course of business that are material to the business, assets, condition (financial or other), results of operations or prospects of the Company and the Guarantors taken as a whole.
(d) Subsequent to the date of this Agreement and prior to the Closing Date:
(i) , there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of Company's securities, including the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors Securities, by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and.
(iie) there The Initial Purchasers shall not have occurred any change, or any development involving received on the Closing Date a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations certificate of the Trust Company dated the Closing Date and signed by its subsidiarieschief executive officer and by its chief financial officer, taken as a whole, from that to the effect set forth in the Final Memorandum provided to prospective purchasers of the Securities thatclauses (a), in your judgment(b), is material (c) and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum(d) above.
(bf) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the GuarantorsGuarantor, including StyroChem, dated the Closing Date and signed by an executive officerofficer of such Guarantor, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors such Guarantor contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors such Guarantor has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letterMilbank, dated the date hereof or the Closing DateTweed, as the case may beXxxxxx & XxXxxx, in form and substance satisfactory counsel to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the issuance and sale of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to Securities and the financial statements authorization, delivery, form and certain financial information contained in each Memorandum; provided that validity of this Agreement, the letter delivered on Indenture, the Closing Date shall use a "cut-off date" not more than three business days prior to Registration Rights Agreement and the Closing Date.
(h) The Initial Purchasers shall have received on each Other Transaction Documents and the accuracy and completeness of the date hereof and representations, warranties or statements of the Closing Date a letterCompany or any of the Guarantors, dated the date hereof performance of the covenants of the Company or any of the Guarantors, or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information fulfillment of any of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information conditions contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Dateherein.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by the Representatives in their sole discretion, of the following conditionsconditions precedent on or prior to the Closing Date:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its Subsidiaries or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred been any change, or any development involving a prospective change, material adverse change in the conditionbusiness, properties, management, condition (financial or otherwise), liquidity, results of operations or in the earnings, business or operations prospects of the Trust Company and its subsidiariesthe Subsidiaries, taken as a whole, from that set forth in the Time of Sale Memorandum and the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Memorandum and the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company Issuer and the Guarantors contained in this Agreement are shall be true and correct on and as of the Time of Sale and on and as of the Closing Date as if made on and that each as of the Company Closing Date; the statements of the Issuer’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuer and the Guarantors has complied with shall have performed all of the covenants and agreements and satisfied all of the conditions on its their part to be performed or satisfied hereunder on at or before prior to the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsa certificate, dated the Closing Date, Date and signed by the principal executive officer and principal financial officer of each of the Issuer and the Company to the effect set forth that, since the date of this Agreement:
(i) there has not occurred any downgrading, nor has any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at rating accorded the request Company or any of the securities of the Company or any of its Subsidiaries or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act;
(ii) there has not been a Material Adverse Change since the date as of which disclosure is made in the Time of Sale Memorandum;
(iii) the representations and warranties of the Issuer and the Guarantors contained in this Agreement were true and shall so state thereincorrect as of the Time of Sale and are true and correct as of the Closing Date; and
(iv) the Issuer and the Guarantors have complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of XxxxGxxxxx, Weiss, Rifkind, Xxxxxxx Dxxx & Xxxxxxxx Cxxxxxxx LLP, U.S. counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit B. A. Such opinion and letter shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors Issuer and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Stikeman Elliott LLP, Canadian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion and letter shall be rendered to the Initial Purchasers at the request of the Issuer and shall so state therein.
(f) The Initial Purchasers shall have received on the Closing Date an opinion of Walkers, Cayman Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C. Such opinion and letter shall be rendered to the Initial Purchasers at the request of the Issuer and shall so state therein.
(g) The Initial Purchasers shall have received on the Closing Date an opinion of Sxxxx & Sterling Wxxxxx L.L.P., Utah counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit D. Such opinion and letter shall be rendered to the Initial Purchasers at the request of the Issuer and shall so state therein.
(h) The Initial Purchasers shall have received a letter from MxXxxxxx, dated the date hereof, in form and substance satisfactory to the Initial Purchasers, containing statements and information of the type ordinarily included in reserve engineers “comfort letters” to underwriters with respect to reserve information included or incorporated by reference in the Time of Sale Memorandum and the Final Memorandum or any amendment or supplement thereto.
(i) The Initial Purchasers shall have received a letter from MxXxxxxx, dated the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 5(h) hereof, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(j) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Dxxxx Xxxx & Wxxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, with respect to such matters as may be reasonably requested by the effect set forth in Exhibit C.Initial Purchasers.
(fk) The Initial Purchasers shall have received on each of the date hereof and the Closing Date an opinion of MxXxxxxx Txxxxxxx LLP, Canadian counsel for the Initial Purchasers, dated the Closing Date, with respect to such matters as may be reasonably requested by the Initial Purchasers.
(l) On the date hereof, the Initial Purchasers shall have received from Deloitte LLP, the independent registered public accounting firm for the Company, a “comfort letter, ” dated the date hereof or addressed to the Initial Purchasers, in form and substance satisfactory to the Representatives, covering the financial information in the Time of Sale Memorandum and other customary matters. In addition, on the Closing Date, as the case may beInitial Purchasers shall have received from such accountants a “bring-down comfort letter” dated the Closing Date addressed to the Initial Purchasers, in form and substance satisfactory to the Initial PurchasersPurchaser the Representatives, from KPMG, LLP, independent public accountants for in the Trust and its subsidiaries, containing statements and information form of the type ordinarily included in accountants' "“comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter letter” delivered on the Closing Date date hereof, except that (i) it shall use cover the financial information in the Final Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a "cut-off date" not date no more than three business days prior to the Closing Date.
(gm) The Initial Purchasers shall have received on each of On the date hereof and the Closing Date a letter, dated the date hereof or on the Closing Date, as the case may beCompany shall have furnished to the Initial Purchasers a certificate, dated the respective dates of delivery thereof and addressed to the Initial Purchasers, of its Chief Financial Officer with respect to certain financial data contained in the Preliminary Memorandum and the Final Memorandum, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Initial Purchasers.
(n) The Issuer and the Guarantors shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd and the Initial Purchasers shall have received executed copies thereof.
("Storm"o) containing statements and information The sale of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered Securities shall not be enjoined (temporarily or permanently) on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(hp) The On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received on each such information, documents, letters and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the date hereof Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and the Closing Date a letterwarranties, dated the date hereof or the Closing Datesatisfaction of any of the conditions or agreements, herein contained. If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the case may be, in form and substance satisfactory Representatives by notice to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered Issuer at any time on the Closing Date shall use a "cut-off date" not more than three business days or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 6(g), 8 and 16 hereof shall at all times be effective and shall survive such termination.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Issuers in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Issuers’ officers made pursuant to the provisions hereof, to the performance by the Issuers of their covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to The Initial Purchasers shall have received an opinion, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review Ledgewood, P.C., counsel for a possible change that does not indicate the direction of the possible changeIssuers, in form and substance satisfactory to Citi, to the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that effect set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final MemorandumExhibit A hereto.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each such other opinions of the Company and the Guarantorscounsel, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicableDate, of each of the Company covering regulatory and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct local matters as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatenedCiti shall reasonably request.
(c) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of XxxxXxxxxx Xxxxxx & Xxxxxxx llp, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel Counsel for the Initial Purchasers, dated the Closing Date, with respect to the effect set forth issuance and sale of the Notes and such other related matters as Citi may reasonably require, and the Issuers shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Ledgewood referred to in Exhibit C.Section 6(a).
(fd) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to Citi and Counsel for the Initial Purchasers, from KPMG, each of Xxxxx Xxxxxxxx LLP and Deloitte & Touche LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided provided, however, that the letter delivered on the Closing Date letters referenced in this clause (d) shall use a "“cut-off date" not more than ” within three business days prior of the date of such letter. References to the Closing DateOffering Memorandum in this paragraph (d) with respect to any letter referred to above shall include any amendment or supplement thereto at the date of any such letter.
(i) None of the Issuers nor any of their subsidiaries nor any other Guarantor, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Offering Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in each Memorandum, there shall not have been any change in the capital stock or long-term debt of any Issuer and its subsidiaries or any other Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, stockholders’ equity, earnings, condition (financial or otherwise), results of operations or management of any Issuer and its subsidiaries or any other Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of Citi, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(f) None of the information set forth in the sections of the Offering Memorandum, or documents incorporated by reference therein, entitled “Use of Proceeds,” “Capitalization,” “Executive Compensation,” “Certain Relationships and Related Transactions” and “Description of Other Indebtedness” shall have changed, nor shall there have been any change in the information with respect to the directors and officers of the Issuers, if the effect of any such change, individually or in the aggregate, in the sole judgment of Citi make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described in the Offering Memorandum, exclusive of any amendment or supplement thereto.
(g) The Initial Purchasers shall have received on each of the date hereof and a certificate, dated the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, and in form and substance satisfactory to the Initial PurchasersCiti, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Chairman of the Managing Board, the President or a Vice President and the Chief Financial Officer of the General Partner as to the financial statements accuracy of the representations and certain financial information contained warranties of the general partner in each Memorandumthis Agreement at and as of the Closing Date; provided that the letter delivered general partner has performed all covenants and agreements and satisfied all conditions on the Closing Date shall use a "cut-off date" not more than three business days their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Sections 6(e), (f) and (j) hereof.
(h) The Initial Purchasers shall have received on each of the date hereof and a certificate, dated the Closing Date and in form and substance satisfactory to Citi, of the Chairman of the Board, the President or a letterVice President and the Chief Financial Officer of Finance Co as to the accuracy of the representations and warranties of the Finance Co in this Agreement at and as of the Closing Date; that the Finance Co has performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Sections 6(e), (f) and (j) hereof.
(i) The Initial Purchasers shall have received a certificate, dated the date hereof Closing Date and in form and substance satisfactory to Citi, of the Chairman of the Board, the President or a Vice President and the Chief Financial Officer of each Guarantor, or the Closing DateGeneral Partner of such Guarantor, as the case may be, in form and substance satisfactory as to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information accuracy of the type ordinarily included representations and warranties of such Guarantor in accountants' "comfort letters" to underwriters with respect to the financial statements this Agreement at and certain financial information contained in each Memorandum; provided that the letter delivered on as of the Closing Date shall use a "cut-off date" not more than three business days Date; that such Guarantor has performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(e) hereof.
(ij) Prior Subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Partnership’s other debt securities by any “nationally recognized statistical rating agency,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Partnership’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(k) The Notes shall be eligible for clearance and settlement through the Depository Trust Company.
(l) On the Closing Date, the Initial Purchasers shall have received the Indenture executed by the Issuers and the Guarantors and the Trustee and such agreement shall be in full force and effect.
(m) On the Closing Date, the Initial Purchasers shall have received the Registration Rights Agreement executed by the Issuers and the Guarantors and such agreement shall be in full force and effect.
(n) Concurrently with or prior to the Closing Date, (i) the Company and the Trust Partnership shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to consummated the Equity Offering consistent in all material respects with the terms described in the Offering Memorandum. On or before the Closing Date, the Initial Purchaser Purchasers and (ii) Harvest Sask Energy Trust and Counsel for the Trust Initial Purchasers shall have entered into an Amended and Restated Net Profit Interest Agreement that is received such further certificates, documents or other information as they may have reasonably satisfactory to requested from the Initial PurchaserIssuers.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by the Representatives in their sole discretion of the following conditionsconditions precedent on or prior to the Closing Date:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors to the effect set forth in Section Sections 5(a)(i) and 5(a)(ii), and further to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement were true and correct as of the Time of Sale and are true and correct as of the Closing Date and Date; that each of the Company and the Guarantors has have complied with all of the agreements and satisfied all of the conditions on its their part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date (i) an opinion and negative assurance letter of Burnet, Xxxxxxxxx White & Xxxxxx Case LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, in form and substance reasonably acceptable to the effect set forth Representatives and (ii) an opinion of Xxxxx Lord LLP, special Texas counsel for the Company, dated the Closing Date, in Exhibit A. Such opinion shall be rendered form and substance reasonably acceptable to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinRepresentatives.
(d) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxx Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, with respect to such matters as may be reasonably requested by the effect set forth in Exhibit C.Initial Purchasers.
(fe) The On the date hereof, the Initial Purchasers shall have received on each of from Ernst & Young LLP, the date hereof and independent registered public accounting firm for the Closing Date Company, a “comfort letter, ” dated the date hereof or addressed to the Closing Date, as the case may beInitial Purchasers, in form and substance satisfactory to the Representatives, covering certain financial information of the Company and its subsidiaries in the Time of Sale Memorandum and other customary matters. In addition, on the Closing Date, the Initial Purchasers shall have received from such accountants a “bring-down comfort letter” dated the Closing Date addressed to the Initial Purchasers, from KPMGin form and substance satisfactory to the Representatives, LLPin the form of the “comfort letter” delivered on the date hereof, independent public accountants for the Trust and its subsidiaries, containing statements and except that (i) it shall cover certain financial information of the type ordinarily included Company and its subsidiaries in accountants' "comfort letters" the Final Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not date no more than three business 3 days prior to the Closing Date.
(gf) The On the date hereof, the Initial Purchasers shall have received on each of from PWC, the date hereof and the Closing Date independent accountants for Ameren Energy Resources Company, LLC (“AER”), a “comfort letter, ” dated the date hereof or addressed to the Closing Date, as the case may beInitial Purchasers, in form and substance satisfactory to the Initial PurchasersRepresentatives and PWC, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and covering certain financial information contained of AER in each Memorandum; provided that the letter delivered Time of Sale Memorandum and other customary matters. In addition, on the Closing Date shall use a "cut-off date" not more than three business days prior to Date, the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date from such accountants a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut“bring-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.down comfort
Appears in 1 contract
Samples: Purchase Agreement (Dynegy Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors its subsidiaries by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed on behalf of the Company by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of BurnetXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxx & Xxxxxx LLPProfessional Corporation, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinRepresentatives.
(d) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the GuarantorsInitial Purchasers, dated the Closing Date, in form and substance satisfactory to the effect set forth Representatives. With respect to Section 5(c) above, Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, and with respect to Section 5(d) above, Xxxxx Xxxx & Xxxxxxxx LLP may state that their opinions and beliefs are based upon their participation in Exhibit B. Such the preparation of the Time of Sale Memorandum, the Final Memorandum and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion and negative assurance letter of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation described in Section 5(c) above shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersRepresentatives, from KPMG, Ernst & Young LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters Initial Purchasers with respect to the financial statements of the Company and Small Giant Games Oy, and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that a letter with respect to the financial statements of Small Giant Games Oy shall only be required to be delivered on the date hereof; provided further that the letter delivered on the Closing Date with respect to the Company shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(gf) The Initial Purchasers shall have received received, on each of the date hereof and the Closing Date Date, a lettercertificate signed by the Chief Financial Officer of the Company, dated respectively as of the date hereof or and as of the Closing Date, in form and substance satisfactory to the Representatives.
(g) The “lock‑up” agreements, each substantially in the form of Exhibit A hereto, between you and the executive officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(h) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(i) A “Listing of Additional Shares Notification” shall have been submitted to The Nasdaq Stock Market LLC (“Nasdaq”) and Nasdaq shall have completed its review of such submission.
(j) The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed on behalf of the Company by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) a certificate, dated the Option Closing Date and signed by the Chief Financial Officer of the Company, substantially in the same form and substance as the case may becertificate furnished to the Initial Purchasers pursuant to Section 5(f) hereof;
(iii) an opinion and negative assurance letter of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(c) hereof;
(iv) an opinion and negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(d) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from Deloitte Ernst & Touche Young LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements accountants, substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(e) hereof to be delivered on the Closing Date; provided that the such letter to be delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.; and
(hvi) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, such other documents as the case you may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters reasonably request with respect to the financial statements good standing of the Company, the due authorization, execution and certain financial information contained in each Memorandum; provided that authentication of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateexecution and authentication of such Additional Securities.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Zynga Inc)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the several Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Company in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to The Initial Purchasers shall have received (i) an opinion, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review Winston & Xxxxxx LLP, counsel for a possible change that does not indicate the direction of the possible changeCompany, in form and substance satisfactory to the rating accorded Initial Purchasers to the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that effect set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final MemorandumExhibit A hereto.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxx Xxxxxx & Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel Counsel for the Initial Purchasers, dated the Closing Date, with respect to the effect set forth issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & Xxxxxx LLP referred to in Exhibit C.Section 6(a).
(fc) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from KPMG, Deloitte & Touche LLP, independent public accountants for auditors of the Trust and its subsidiariesCompany, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not more than three business days prior contained in the Preliminary Memorandum. References to the Closing DateOffering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(gi) None of the Company nor the Guarantor, shall have sustained, since the date of the latest audited financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, there shall not have been any change in the long-term debt of the Company or the Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers shall have received on each of the date hereof and a certificate, dated the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, and in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor as to the financial statements accuracy of the representations and certain financial information contained warranties of the Company in each Memorandumthis Agreement at and as of the Closing Date; provided that the letter delivered Company has performed all covenants and agreements and satisfied all conditions on the Closing Date shall use a "cut-off date" not more than three business days its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d).
(f) There shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Initial Purchasers Company and the Guarantor shall have received on each of executed and delivered the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beIndenture, in form and substance reasonably satisfactory to the Initial Purchasers, from PricewaterhouseCoopersand the Initial Purchasers shall have received executed copies thereof. The Company and the Guarantor shall have executed and delivered the Registration Rights Agreement, LLPin form and substance reasonably satisfactory to the Initial Purchasers, independent public accountants for EnCana Corporation and the Initial Purchasers shall have received such executed counterparts.
("EnCana"), containing statements and information i) All of the type ordinarily included conditions to closing set forth in accountants' "comfort letters" to underwriters with respect the documents relating to the financial statements Tender Offer shall have been satisfied in all material respects other than the consummation of the offer and certain financial information contained in each Memorandum; provided that sale of the letter delivered on Notes hereunder. On the Closing Date Date, the Company shall have given irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s election to use a "cut-off date" any proceeds remaining from this offering after the Tender Offer is consumated and any related fees and expenses are paid to redeem Existing 2012 Notes outstanding following the consummation of the Tender Offer pro rata (which notice may be delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not more than three business days satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such termination.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the Company's securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided (exclusive of any amendments or supplements thereto subsequent to prospective purchasers the date of the Securities this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and reasonably satisfactory to the Subsidiary Guarantors Initial Purchasers, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date (as if made on the Closing Date) and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetDavis Polk & Wardwell, Xxxxxxxxx & Xxxxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing DateXxxxxxx Xate, to the xx xxx effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion from the General Counsel of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion and letter of Shearman & Sterling LLPSterling, U.S. counsel for the Initial Purchasers, dated the Closing Datethx Xxxxxxg Dxxx, to xx the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers, from KPMG, PricewaterhouseCoopers LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more earlier than three business days prior to the Closing Datedate hereof.
(g) The Company and the Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial PurchaserRegistration Rights Agreement.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by the Representatives in their sole discretion, of the following conditionsconditions precedent on or prior to the Closing Date:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company Gogo or any of the Guarantors or in the rating outlook for the Company or the Guarantors its subsidiaries by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Gogo and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your judgmentthe judgment of the Representatives, is material and adverse and that makes it, in your judgmentthe judgment of the Representatives, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company Issuers and the Signing Guarantors contained in this Agreement are shall be true and correct on and as of the Time of Sale and on and as of the Closing Date as if made on and that each as of the Company Closing Date; the statements of the officers of the Issuers and the Signing Guarantors has complied made pursuant to any certificate delivered in accordance with all the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; and the Issuers and the Signing Guarantors shall have performed all covenants and agreements and satisfied all of the conditions on its their part to be performed or satisfied hereunder on at or before prior to the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsa certificate, dated the Closing Date, Date and signed by an executive officer of each Issuer and each Signing Guarantor to the effect set forth in Exhibit A. Such opinion shall be rendered Section 5(a), and further to the Initial Purchasers at effect that the request representations and warranties of the Company Issuers and the Signing Guarantors contained in this Agreement were true and shall so state thereincorrect as of the Time of Sale and are true and correct as of the Closing Date; that the Issuers and the Signing Guarantors have complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date.
(d) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxxx Debevoise & Xxxxxxxx LLP, U.S. outside counsel for the Company Issuers and the Guarantors, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit B. Representatives. Such opinion and letter shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors Issuers and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling Xxxxx Lovells US LLP, U.S. outside regulatory counsel for the Initial PurchasersIssuers and the Guarantors, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit C.Representatives.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letteran opinion of Sidley Austin LLP, outside Delaware counsel for the Issuers and certain of the Guarantors, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing DateRepresentatives.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date an opinion and negative assurance letter of Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchasers, dated the Closing Date, with respect to such matters as may be reasonably requested by the Initial Purchasers.
(h) On the date hereof, the Initial Purchasers shall have received from Deloitte & Touche LLP, the independent registered public accounting firm for Gogo, a “comfort letter, ” dated the date hereof or addressed to the Closing Date, as the case may beInitial Purchasers, in form and substance satisfactory to the Initial PurchasersRepresentatives, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to covering the financial statements information included or incorporated by reference in the Time of Sale Memorandum and certain financial information contained in each Memorandum; provided that the letter delivered other customary matters. In addition, on the Closing Date shall use a "cut-off date" not more than three business days prior to Date, the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and from such accountants a “bring-down comfort letter” dated the Closing Date a letter, dated addressed to the date hereof or the Closing Date, as the case may beRepresentatives, in the form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "“comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter letter” delivered on the Closing Date date hereof, except that (i) it shall use cover the financial information included or incorporated by reference in the Final Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a "cut-off date" not date no more than three business days prior to the Closing Date.
(i) Prior On the date hereof and on the Closing Date, Gogo shall have furnished to the Representatives a certificate, dated the respective dates of delivery thereof and addressed to the Initial Purchasers, of its chief financial officer with respect to certain financial data included or incorporated by reference in the Time of Sale Memorandum and the Final Memorandum, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representatives.
(j) The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of Gogo and its subsidiaries in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) The Issuers and the Guarantors shall have executed and delivered the Indenture, the Securities and the Security Documents, in form and substance reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received executed copies thereof.
(l) Except as otherwise provided for in the Security Documents, the Indenture or the other documents entered into related to the issuance and sale of the Securities, the Representatives and the Collateral Agent shall have received each of the Security Documents, in form and substance reasonably satisfactory to the Representatives, and all other certificates, agreements or instruments necessary to perfect the Collateral Agent’s security interest in all of the Collateral, including but not limited to, as applicable, stock certificates accompanied by instruments of transfer and stock powers undated and endorsed in blank, Uniform Commercial Code financing statements in appropriate form for filing and filings with the United States Patent and Trademark Office and United States Copyright Office in appropriate form for filing; each such document executed by the Issuers and each other party thereto, and each such document shall be in full force and effect and evidence that all of the liens on the Collateral other than Permitted Liens have been released. The Representatives shall also have received certified copies of Uniform Commercial Code, tax and judgment lien searches or equivalent reports or searches, and a copy of searches at the United States Patent and Trademark Office and the United States Copyright Office, each of a recent date listing all effective financing statements, lien notices or comparable documents that name either Issuer or any Guarantor as debtor and that the Representatives deem necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Documents (other than Permitted Liens). The Representatives shall have received customary lender’s loss payable endorsements with respect to the Issuers’ and the Signing Guarantors’ insurance policies and insurance certificates naming the Collateral Agent as an additional insured or loss payee, as applicable.
(m) The Securities shall be eligible for clearance and settlement through DTC.
(n) Within 15 days of the Closing Date, each of the Closing Guarantors shall have executed and delivered the Joinder Agreement.
(o) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such information, documents, letters and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained. If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representatives by notice to the Issuers at any time on or prior to the Closing Date, (i) which termination shall be without liability on the Company part of any party to any other party, except that Sections 6(g), 8 and the Trust 11 hereof shall have entered into an Amended at all times be effective and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchasersurvive such termination.
Appears in 1 contract
Samples: Purchase Agreement (Gogo Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations obligation of the Initial Purchasers Purchaser to purchase and pay for the Securities Units on the Closing Date are is subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:,
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the Company's securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations operations, of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided (exclusive of any amendments or supplements thereto subsequent to prospective purchasers the date of the Securities this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities Units on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and Company, to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements contained herein and satisfied all of the conditions contained herein on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx Xxxxxx Xxxx & Xxxxxx LLP, Canadian outside counsel for to the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. E. Such opinion shall be rendered to the Initial Purchasers Purchaser at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx Xxxxxxx & Xxxxxxxx LLPXxxxxxxx, U.S. counsel for Special Note Counsel to the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit B. F. Such opinion shall be rendered to the Initial Purchasers Purchaser at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Shearman Xxxxxxx & Sterling LLPBerlin, U.S. Chartered, regulatory counsel for to the Initial PurchasersCompany, dated the Closing Date, to the effect set forth in Exhibit C.G. Such opinion shall be rendered to the Initial Purchaser at the request of the Company and shall so state therein.
(f) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Shearman & Sterling, counsel to the Initial Purchaser, dated the Closing Date, in form and substance satisfactory to you.
(g) The Initial Purchaser shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersPurchaser, from KPMG, Ernst & Young LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each the Final Memorandum; provided PROVIDED that the letter delivered on the Closing Date shall use a "cut-off date" not more earlier than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Datehereof.
(h) The Initial Purchasers You shall have received on each of the date hereof such other documents and the Closing Date a letter, dated the date hereof certificates as are reasonably requested by you or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Dateyour counsel.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers hereunder to purchase and pay for the Securities Securities, on the Closing Date or the Additional Closing Date, as the case may be, are subject to the performance by the Company of its obligations hereunder and the following conditions:
(a) Subsequent to Since the execution respective dates as of which information is given in the Disclosure Package and delivery of this Agreement and prior to the Closing Date:
(i) Offering Memorandum, there shall not have occurred been any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company capital stock or any of the Guarantors or any of the securities long-term debt of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the conditiongeneral affairs, business, prospects, management, consolidated financial position, results of operations, cash flows or otherwisestockholders, equity of the Company, otherwise than as set forth or contemplated in the earningsDisclosure Package and the Offering Memorandum (including, business in each case, if applicable, any amendment or operations of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum supplement thereto) provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that the judgment of the Initial Purchasers makes it, in your judgment, it impracticable or inadvisable to market the Securities Securities, on the terms and in the manner contemplated in the Final Disclosure Package and the Offering Memorandum; and the Company shall not have sustained since the date of the latest audited financial statements included in the Disclosure Package and the Offering Memorandum any material loss or interference with its business from fire, explosion, flood, vessel damage or loss (including to any of the Identified Vessels) or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Disclosure Package and the Offering Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date or the Additional Closing Date, as the case may be, a certificate from each signed by the Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) 4(a). The Initial Purchasers shall have also received on the Closing Date or the Additional Closing date, as the case may be, a certificate signed by the Chief Executive Officer and the Chief Financial Officer of the Company, to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date or the Additional Closing Date, as the case may be, and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date or the Additional Closing Date. The officers signing and delivering such certificates , as the case may rely upon the best of his or her knowledge as to proceedings threatenedbe.
(c) The Initial Purchasers shall have received on and as of the Closing Date or the Additional Closing Date, as the case may be, an opinion of Burnet, Xxxxxxxxx Xxxxxx & Xxxxxx LLP, Canadian U.S. counsel for the Company Company, in form and substance satisfactory to the Guarantors, dated the Closing DateInitial Purchasers, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on and as of the Closing Date or the Additional Closing Date, as the case may be, an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx Xxxxxx & Xxxxxxxx Xxxxxx LLP, U.S. Xxxxxxxx Islands counsel for the Company Company, in form and substance satisfactory to the Guarantors, dated the Closing DateInitial Purchasers, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on and as of the Closing Date or the Additional Closing Date, as the case may be, an opinion of Shearman & Sterling LLPa nationally recognized Greek law firm, U.S. counsel for reasonably satisfactory to the Initial Purchasers, dated as Greek counsel of the Closing DateCompany, in form and substance satisfactory to the Initial Purchasers, to the effect set forth in Exhibit C.C. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date or the Additional Closing Date, as the case may be, a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, Purchasers from KPMG, LLPindependent registered public accounting firm, independent public accountants for with respect to the Trust and its subsidiariesCompany, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters the Initial Purchasers with respect to the financial statements and certain financial information contained in each the Disclosure Package and the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each and as of the date hereof and the Closing Date a letter, dated the date hereof or the Additional Closing Date, as the case may be, in form and substance satisfactory an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements Offering Memorandum and certain financial other related matters as the Initial Purchasers may reasonably request, and such counsel shall have received from the Company such papers and information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior as they may reasonably request to the Closing Dateenable them to pass upon such matters.
(h) The Company, Innovation Holdings and the Initial Purchasers shall have entered into the Registration Rights Agreement, and the Initial Purchasers shall have received on each counterparts, conformed as executed, thereof.
(i) The Company and the Initial Purchasers shall have entered into the Initial Purchaser Registration Rights Agreement, and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(j) The Company and the Warrant Agent shall have entered into the Warrant Agreement, and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(k) Innovation Holdings and the Company shall have entered into the Subscription Agreement and the Initial Purchasers shall have received executed counterparts thereof.
(l) The Company shall have entered into charter arrangement for the Clean Seas, with a duration of at least one-year and a time charter hire rate of $14,500 per day, and the Initial Purchasers shall have received counterparts, conformed as executed, thereof.
(m) The number of outstanding shares of Class B Common Stock shall not constitute more than 15.0% of the date hereof total number of outstanding shares of all classes of the Company’s capital stock, on a combined basis (but excluding the Commission Units and taking into account the shares of Class A Common Stock to be issued to Innovation Holdings after the Closing Date pursuant to the Subscription Agreement for purposes of this calculation), as of the Closing Date, and the Initial Purchasers shall have received documentation evidencing the foregoing to their satisfaction.
(n) The Amended and Restated Articles of Incorporation of the Company, in a letterform containing the subordination provisions for the Class B Common Stock conforming to the description thereof in the Disclosure Package and Offering Memorandum, dated shall have become effective and be in full force and effect and the date hereof Initial Purchasers shall have received a copy of such Amended and Restated Articles of Incorporation certified by the Registrar of Corporations of the Republic of the Xxxxxxxx Islands.
(o) On or prior to the Closing Date or the Additional Closing Date, as the case may be, in form and substance satisfactory the Company shall have furnished to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements Purchasers such further certificates and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to documents as the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust Purchasers shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserrequest.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the several Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Company and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution The Initial Purchasers shall have received (i) an opinion and delivery of this Agreement and prior to negative assurance statement, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook Counsel for the Company or Company, the Guarantors by any "nationally recognized statistical rating organization," form of which is attached as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
Exhibit A, and (ii) there shall not have occurred any changean opinion, or any development involving a prospective changedated the Closing Date, in of Xxxxx X. Xxxxxxxxxx, internal counsel for the conditionCompany, financial or otherwise, or in the earnings, business or operations form of the Trust and its subsidiaries, taken which is attached as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.Exhibit B.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel Counsel for the Initial Purchasers, dated the Closing Date, with respect to the effect set forth in Exhibit C.issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters.
(fc) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from KPMG, Ernst & Young LLP, an independent registered public accountants for the Trust and its subsidiariesaccounting firm, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the historical consolidated financial statements and certain financial information contained of the Company included in each or incorporated by reference into the Offering Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" not more than ” within three business days prior of the date of such letter. References to the Closing DateOffering Memorandum and the Final Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(gi) None of the Company nor any of its subsidiaries, shall have sustained, since the date of the latest audited historical consolidated financial statements included or incorporated by reference in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the capital stock or long-term debt of the Company and its subsidiaries, considered as one enterprise, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, earnings, financial condition, results of operations or management of the Company and its subsidiaries, considered as one enterprise, whether or not in the ordinary course of business, otherwise than as set forth in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the terms and in the manner described in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers shall have received on each of the date hereof and certificates dated the Closing Date a letterand in form and substance reasonably satisfactory to the Initial Purchasers, dated of (i) the date hereof or Chief Executive Officer and the Chief Financial Officer of the Company and (ii) each Guarantor: as to the accuracy of the representations and warranties of the Company and the Guarantors in this Agreement at and as of the Closing Date; that the Company and or the applicable Guarantor(s), as the case may be, in form have performed all covenants and substance satisfactory agreements and satisfied all conditions on its or their part to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d) (in the case of the certificate from the Company’s officers only).
(f) The Notes shall have received initial ratings by Standard & Poor’s and Moody’s, and, subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Section 3(a)(62) under the Exchange Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Notes or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through the Common Depositary, Euroclear and Clearstream.
(h) The On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received on each of such further certificates, documents or other information as they may have reasonably requested from the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing DateCompany.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Belden Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are is subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or of any of the Guarantors or any of the Company’s securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any changebeen, since the date of this Agreement or any development involving a prospective change, since the respective dates as of which information is given in the conditionDisclosure Package and Final Memorandum, any material adverse change in the financial or otherwise, condition or in the earnings, business or operations earnings of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an the chief executive officer, trustee officer or managing partner, as applicable, of each the chief financial officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that (i) the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct in all material respects as of the Closing Date and that each of (ii) the Company and the Guarantors has complied in all material respects with all of the agreements and satisfied in all material respects all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion or opinions and a negative assurances letter of Burnet, Xxxxxxxxx Xxxxxx & Xxxxxx Xxxxxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to substantially in the effect forms set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.B.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxx & Xxxxxxx & Xxxxxxxx LLP, U.S. special tax counsel for the Company and the GuarantorsCompany, dated the Closing Date, to substantially in the effect form set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.C.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of the Company’s general counsel or any assistant general counsel, dated the Closing Date, substantially in the form set forth in Exhibit D.
(f) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to covering the effect matters set forth in Exhibit C.E.
(fg) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may behereof, in form and substance reasonably satisfactory to the Initial Purchasers, from KPMG, Ernst & Young LLP, independent registered public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that or incorporated by reference into the letter delivered Disclosure Package and the Final Memorandum and on the Closing Date shall use a "cut-off date" not more than three business days prior to Date, the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beletter from Ernst & Young LLP, in form and substance reasonably satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial effect that they reaffirm the statements and certain financial information contained made in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Datehereof.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Amgen Inc)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) The respective representations and warranties of the Company and Pluralsight LLC contained herein shall be true and correct on the date hereof and on and as of the Closing Date or the Option Closing Date, as the case may be; and the statements of the Company, Pluralsight LLC and their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date or the Option Closing Date, as the case may be;
(b) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate and subsequent to the direction of Closing Date and prior to the possible changeOption Closing Date, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, management or operations of the Trust Company, Pluralsight LLC and its subsidiariesthe subsidiaries of the Company or Pluralsight LLC, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(bc) The Initial Purchasers Representatives shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, officer of each of the Company and the Subsidiary Guarantors Pluralsight LLC, to the effect set forth in Section 5(a)(i5(a) and Section 5(b) above and to the effect that the representations and warranties of each of the Company and the Guarantors Pluralsight LLC, respectively, contained in this Agreement are true and correct on the date hereof and as of the Closing Date and that each of the Company and the Guarantors Pluralsight LLC, as applicable, has complied with all of the agreements and satisfied all of the conditions on its part their respective parts to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering each such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(cd) The Initial Purchasers Representatives shall have received on the Closing Date an opinion and negative assurance letter of Burnet, Xxxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx LLP, Canadian P.C. (“WSGR”), outside counsel for the Company and the GuarantorsPluralsight LLC, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinRepresentatives.
(e) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Shearman & Sterling LLPXxxxxxx Procter LLP (“Goodwin”), U.S. counsel for the Initial Purchasers, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth Representatives. With respect to Section 5(d) above and Section 5(e) above, WSGR and Xxxxxxx may state that their opinions and beliefs are based upon their participation in Exhibit C.the preparation of the Time of Sale Memorandum and the Final Memorandum and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The opinion of WSGR described in Section 5(d) above shall be rendered to the Initial Purchasers at the request of the Company and Pluralsight LLC and shall so state therein.
(f) The Initial Purchasers shall have received received, on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the a letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana")accountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than the date hereof.
(g) The “lock‑up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and certain holders of shares of Common Stock or membership interests of Pluralsight LLC or any other securities convertible into or exercisable or exchangeable for Common Stock or membership interests of Pluralsight LLC (such shares of Common Stock, membership interests of Pluralsight LLC or such other securities collectively, the “Company and LLC Equity Securities”) and certain officers and directors of the Company and Pluralsight LLC, relating to sales and certain other dispositions of the Company and LLC Equity Securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(h) The Initial Purchasers shall have received, on each of the date hereof and the Closing Date, a certificate signed by the Chief Financial Officer of the Company dated the date hereof and as of the Closing Date, in form and substance satisfactory to the Initial Purchasers, containing statements and information with respect to certain information contained in the Time of Sale Memorandum and the Final Memorandum.
(i) The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the following conditions, and/or delivery to the Representatives on the applicable Option Closing Date of the following:
(i) certificates dated the Option Closing Date and signed by an executive officer of each of the Company and Pluralsight LLC, confirming that the respective certificates of the Company and Pluralsight LLC delivered on the Closing Date pursuant to Section 5(c) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of WSGR, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(d) hereof;
(iii) an opinion and negative assurance letter of Xxxxxxx, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(e) hereof;
(iv) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, independent public accountants, substantially in the same form and substance as the letter furnished to the Initial Purchasers pursuant to Section 5(f) hereof; provided that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to the such Option Closing Date;
(v) a certificate of the Chief Financial Officer of the Company dated the Option Closing Date, substantially in the same form and substance as the letters furnished to the Initial Purchasers pursuant to Section 5(h) hereof, containing statements and information with respect to certain information contained in the Time of Sale Prospectus and the Prospectus; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company and Pluralsight LLC, the due authorization, execution and authentication of the Additional Securities to be sold on such Option Closing Date and other matters related to the execution and authentication of such Additional Securities.
(ij) Prior A number of shares of Class A Common Stock equal to the Closing Date, (i) sum of the Company and the Trust Maximum Number of Underlying Securities shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory been approved for listing on The NASDAQ Global Select Market, subject to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserofficial notice of issuance.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the debt securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any material change, or any development involving a prospective changeMaterial Adverse Effect, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an the chief executive officer, trustee officer or managing partner, as applicable, of each the chief financial officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are (i) true and correct in all material respects (other than representations and warranties qualified by materiality, in which case such representations shall be true and correct in all respects) as of the Closing Date and with the same effect as if made on such delivery date, (ii) that each of the Company and the Guarantors has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date, and (iii) since the date of the most recent financial statements included in the Time of Sale Memorandum, there has been no material adverse change in the financial condition, earnings, business or properties of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the Time of Sale Memorandum. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxx & Xxxxxx LLPProfessional Corporation, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of XxxxXxxx X. Xxxxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the GuarantorsCompany’s General Counsel, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.B.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Xxxxxxx Xxxxxxx & Sterling Xxxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit C.Initial Purchasers.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beapplicable, in form and substance satisfactory to the Initial Purchasers, from KPMG, PricewaterhouseCoopers LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing DateJanuary 27, 2015.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company shall have received all waivers or consents under any agreement or other instrument binding upon the Company or any of its subsidiaries, including any indentures, mortgage, deed of trust, loan agreement, stockholder agreement or other agreement that is material to the Company and its subsidiaries, taken as a whole, that are necessary for the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to issuance of the Initial Purchaser and (ii) Harvest Sask Energy Trust Securities and the Trust shall have entered into an Amended performance by the Company of its obligations under this Agreement, the Indenture and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial PurchaserSecurities.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the debt securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any material change, or any development involving a prospective changeMaterial Adverse Effect, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an the chief executive officer, trustee officer or managing partner, as applicable, of each the chief financial officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are (i) true and correct in all material respects (other than representations and warranties qualified by materiality, in which case such representations shall be true and correct in all respects) as of the Closing Date and with the same effect as if made on such delivery date, (ii) that each of the Company and the Guarantors has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date, and (iii) since the date of the most recent financial statements included in the Time of Sale Memorandum, there has been no material adverse change in the financial condition, earnings, business or properties of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the Time of Sale Memorandum. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxx & Xxxxxx LLPProfessional Corporation, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of XxxxXxxx X. Xxxxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the GuarantorsCompany’s General Counsel, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.B.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Xxxxxxx Xxxxxxx & Sterling Xxxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit C.Initial Purchasers.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beapplicable, in form and substance satisfactory to the Initial Purchasers, from KPMG, PricewaterhouseCoopers LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing DateApril 23, 2015.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company shall have received all waivers or consents under any agreement or other instrument binding upon the Company or any of its subsidiaries, including any indentures, mortgage, deed of trust, loan agreement, stockholder agreement or other agreement that is material to the Company and its subsidiaries, taken as a whole, that are necessary for the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to issuance of the Initial Purchaser and (ii) Harvest Sask Energy Trust Securities and the Trust shall have entered into an Amended performance by the Company of its obligations under this Agreement, the Indentures and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial PurchaserSecurities.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Issuers in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Issuers’ officers made pursuant to the provisions hereof, to the performance by the Issuers of their covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to The Initial Purchasers shall have received an opinion, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review Ledgewood, P.C., counsel for a possible change that does not indicate the direction of the possible changeIssuers, in form and substance satisfactory to Wachovia, to the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that effect set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final MemorandumExhibit A hereto.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each such other opinions of the Company and the Guarantorscounsel, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicableDate, of each of the Company covering regulatory and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct local matters as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatenedWachovia shall reasonably request.
(c) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxx Xxxxxx & Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel Counsel for the Initial Purchasers, dated the Closing Date, with respect to the effect set forth issuance and sale of the Notes and such other related matters as Wachovia may reasonably require, and the Issuers shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Ledgewood referred to in Exhibit C.Section 6(a).
(fd) The Initial Purchasers shall have received on each of the date hereof and the Closing Date (i) a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to Wachovia and Counsel for the Initial Purchasers, from KPMG, Xxxxx Xxxxxxxx LLP, independent public accountants for the Trust accountants, and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(gii) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to Wachovia and Counsel for the Initial Purchasers, Purchasers from Deloitte & Touche KPMG LLP, independent public accountants for Storm Energy Ltd ("Storm") with respect to the Anadarko Assets, in each case containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided provided, however, that the letter delivered on the Closing Date letters referenced in clause (i) shall use a "“cut-off date" ” within three days of the date of such letter. References to the Offering Memorandum in this paragraph (d) with respect to any letter referred to above shall include any amendment or supplement thereto at the date of any such letter.
(i) None of the Issuers nor any of their subsidiaries nor any other Guarantor, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Offering Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not more covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than three business days as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in each Memorandum, there shall not have been any change in the capital stock or long-term debt of any Issuer and its subsidiaries or any other Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, stockholders’ equity, earnings, condition (financial or otherwise), results of operations or management of any Issuer and its subsidiaries or any other Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of Wachovia, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(f) None of the information set forth in the sections of the Offering Memorandum, or documents incorporated by reference therein, entitled “Offering Memorandum Summary—Recent Developments,” “Use of Proceeds,” “Capitalization,” “Executive Compensation,” “Certain Relationships and Related Transactions” and “Description of Other Indebtedness” shall have changed, nor shall there have been any change in the information with respect to the directors and officers of the Issuers from what is set forth in the section of the Offering Memorandum entitled “Management,” if the effect of any such change, individually or in the aggregate, in the sole judgment of Wachovia make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described in the Offering Memorandum, exclusive of any amendment or supplement thereto.
(g) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to Wachovia, of the Chairman of the Managing Board, the President or a Vice President and the Chief Financial Officer of the General Partner as to the accuracy of the representations and warranties of the Issuers in this Agreement at and as of the Closing Date; that the Issuers have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Sections 6(d), (e) and (g) hereof.
(h) The Initial Purchasers shall have received on each of the date hereof and a certificate, dated the Closing Date and in form and substance satisfactory to Wachovia, of the Chairman of the Board, the President or a letterVice President and the Chief Financial Officer of the Finance Co as to the accuracy of the representations and warranties of the Finance Co in this Agreement at and as of the Closing Date; that the Finance Co has performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Sections 6(d), (e) and (f) hereof.
(i) The Initial Purchasers shall have received a certificate, dated the date hereof Closing Date and in form and substance satisfactory to Wachovia, of the Chairman of the Board, the President or a Vice President and the Chief Financial Officer of each Guarantor, or the Closing DateGeneral Partner of such Guarantor, as the case may be, in form and substance satisfactory as to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information accuracy of the type ordinarily included representations and warranties of such Guarantor in accountants' "comfort letters" to underwriters with respect to the financial statements this Agreement at and certain financial information contained in each Memorandum; provided that the letter delivered on as of the Closing Date shall use a "cut-off date" not more than three business days Date; that such Guarantor has performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Sections 6(d), (e) and (f) hereof.
(ij) Prior Subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Partnership’s other debt securities by any “nationally recognized statistical rating agency,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Partnership’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(k) The Notes shall have been designated for trading on PORTAL.
(l) The Notes shall be eligible for clearance and settlement through the Depository Trust Company.
(m) On or before the Closing Date, (i) the Company Initial Purchasers and Counsel for the Trust Initial Purchasers shall have entered into an Amended and Restated Net Profit Interest Agreement that is received such further certificates, documents or other information as they may have reasonably satisfactory to requested from the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial PurchaserIssuers.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the several Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Issuers and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Issuers’ and Guarantors’ officers made pursuant to the provisions hereof, to the performance by the Issuers of their covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to The Initial Purchasers shall have received an opinion, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review Xxxxx Xxxxx LLP, counsel for a possible change that does not indicate the direction of the possible changeIssuers, in form and substance satisfactory to the rating accorded Initial Purchasers, to the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that effect set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final MemorandumExhibit A hereto.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, to of the effect set forth in Exhibit A. Such opinion shall be rendered to Counsel for the Initial Purchasers at with respect to the request issuance and sale of the Company Notes and such other related matters as the Initial Purchasers may reasonably require, and the Guarantors and Issuers shall so state thereinhave furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(fc) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from KPMG, KPMG LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” within three days of the date of such letter and that their procedures, shall extend to financial information in the Final Memorandum not more than three business days prior contained in the Preliminary Memorandum. References to the Closing DateOffering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(gi) None of Partnership nor any of its subsidiaries, shall have sustained, since the date of the latest audited financial statements included in the Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto), any material loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum and the Offering Memorandum, there shall not have been any material change in the capital stock or material increase in the long-term debt of Partnership and its subsidiaries, or any material change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, stockholders’ equity, earnings, condition (financial or otherwise), results of operations or management of Partnership and its subsidiaries, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) None of the information set forth in the sections of the Offering Memorandum entitled “Use of Proceeds” and “Description of Certain Indebtedness” shall have materially changed, nor shall there have been any material change in the information with respect to the directors and officers of the Issuers from what is set forth in the section of the Offering Memorandum entitled “Management”, if the effect of any such change, individually or in the aggregate, in the sole judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described in the Offering Memorandum, exclusive of any amendment or supplement thereto.
(f) The Initial Purchasers shall have received on each of the date hereof and a certificate, dated the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, and in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Chief Executive Officer and the Chief Financial Officer of General Partner as to the financial statements accuracy of the representations and certain financial information contained warranties of the Issuers and the Guarantors in each Memorandumthis Agreement at and as of the Closing Date; provided that the letter delivered Issuers and the Guarantors have has performed all covenants and agreements and satisfied all conditions on the Closing Date shall use a "cut-off date" not more than three business days its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Sections 6(d), (e) and (g).
(g) Subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Issuers’ other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Issuers’ other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(h) The Notes shall be eligible for clearance and settlement through the Depository Trust Company.
(i) The Initial Purchasers shall have received on each a counterpart of the date hereof Registration Rights Agreement that shall have been executed and delivered by a duly authorized officers of the Issuers and the Closing Date a letter, dated the date hereof Guarantors;
(j) On or before the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersPurchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company Issuers and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial PurchaserGuarantors.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors its subsidiaries by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum as of the date of this Agreement provided to the prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company Company, the Issuing Subsidiary and the Subsidiary Guarantors each Guarantor, to the effect set forth in Section 5(a)(i6(a)(i) and to the effect that the representations and warranties of the Company, the Issuing Subsidiary and each of the Company and the Guarantors Guarantor contained in this Agreement are true and correct as of the Closing Date and that the Company, the Issuing Subsidiary and each of the Company and the Guarantors Guarantor has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetXxxxx Day, Xxxxxxxxx & Xxxxxx LLP, Canadian outside counsel for the Company and the certain domestic Guarantors, dated the Closing Date, in form and substance satisfactory to the Initial Purchaser and to the effect set forth in Exhibit A. A hereto. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an Date:
(i) the English law opinion of XxxxXxxxx Day, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. English law counsel for the Company and the certain foreign Guarantors, dated the Closing Date, in form and substance satisfactory to the Initial Purchaser and to the effect set forth in Exhibit B. B-1 hereto;
(ii) the Luxembourg law opinion of MNKS, Luxembourg law counsel for the Issuing Subsidiary, dated the Closing Date, in form and substance satisfactory to the Initial Purchaser and to the effect set forth in Exhibit B-2 hereto;
(iii) the Canadian law opinion of XxXxxxxx Xxxxxxxx, Canadian law counsel for certain foreign Guarantors, dated the Closing Date, in form and substance satisfactory to the Initial Purchaser and to the effect set forth in Exhibit B-3 hereto; and
(iv) the Cayman Islands law opinion of Xxxxxx and Xxxxxx, Cayman Islands law counsel for certain foreign Guarantors, dated the Closing Date, in form and substance satisfactory to the Initial Purchaser and to the effect set forth in Exhibit B-4 hereto. Such opinion opinions shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors Issuing Subsidiary and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Xxxxxx & Sterling Xxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, in form and substance reasonably acceptable to the effect set forth in Exhibit C.Initial Purchasers.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, Xxxxx Xxxxxxxx LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte Ernst & Touche Young LLP, independent public accountants for Storm Energy Ltd ("Storm") accountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information related to Opnext, Inc. and its subsidiaries contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on “lock-up” agreements, each substantially in the form of Exhibit C hereto, between you and the executive officers and directors of the date hereof Company listed on Annex A relating to sales and the Closing Date a lettercertain other dispositions of shares of Common Stock or certain other securities, dated delivered to you on or before the date hereof or the Closing Datehereof, as the case may be, shall be in form full force and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered effect on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(ij) the The Securities shall be eligible for clearance and settlement through The Depository Trust Company (“DTC”).
(k) The Issuing Subsidiary and the Trust Guarantors shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory satisfied their obligations pursuant to the covenant described in Section 7(o) hereof. The several obligations of the Initial Purchaser and (ii) Harvest Sask Energy Trust and Purchasers to purchase Securities on the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is Closing Date are subject to delivery to you on the Closing Date of such documents as you may reasonably satisfactory request with respect to the Initial Purchasergood standing of the Company, the Issuing Subsidiary and each Guarantor, the due authorization, execution and authentication of the Securities to be sold on the Closing Date and other matters related to the execution and authentication of the Securities.
Appears in 1 contract
Samples: Purchase Agreement (Oclaro, Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Company in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
The Initial Purchaser shall have received (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, of Winston & Xxxxxx LLP, counsel for the Company, in form and substance satisfactory to the Initial Purchaser, subject to customary assumptions and qualifications, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinA hereto.
(db) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantorsopinion, dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx LLP, Counsel for the Initial Purchaser, with respect to the effect set forth in Exhibit B. Such opinion shall be rendered to issuance and sale of the Notes and such other related matters as the Initial Purchasers at the request of Purchaser may reasonably require, and the Company and shall have furnished to such counsel such documents as it may reasonably request for the Guarantors and shall so state thereinpurpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Winston & Xxxxxx LLP referred to in Section 6(a).
(ec) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers Purchaser shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersPurchaser and Counsel for the Initial Purchaser, from KPMG, Deloitte & Touche LLP, independent public accountants for auditors of the Trust and its subsidiariesCompany, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” within three days of the date of such letter and that their procedures shall extend to financial information in the Final Memorandum not more than three business days prior contained in the Preliminary Memorandum. References to the Closing DateOffering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(gi) None of the Company nor the Guarantor, shall have sustained, since the date of the latest audited financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Offering Memorandum, there shall not have been any change in the long-term debt of the Company or the Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, shareholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Company or the Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Initial Purchaser, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers Purchaser shall have received on each of the date hereof and a certificate, dated the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, and in form and substance satisfactory to the Initial PurchasersPurchaser, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Chief Executive Officer and the Chief Financial Officer of the Company and the Guarantor as to the financial statements accuracy of the representations and certain financial information contained warranties of the Company in each Memorandumthis Agreement at and as of the Closing Date; provided that the letter delivered Company has performed all covenants and agreements and satisfied all conditions on the Closing Date shall use a "cut-off date" not more than three business days its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d).
(f) There shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream Banking and the Euroclear System as indirect participants of DTC.
(h) The Initial Purchasers Company and the Guarantor shall have received on each of executed and delivered the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beRegistration Rights Agreement, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser, and the Initial Purchaser shall have received such executed counterparts.
(i) On or before the Closing Date, the Initial Purchaser and Counsel for the Initial Purchaser shall have received such further certificates, documents or other information as they may have reasonably requested from the Company. If any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Initial Purchaser by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 5 and 7 hereof shall at all times be effective and shall survive such termination.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by the Representative in its sole discretion, of the following conditionsconditions precedent on or prior to the Closing Date:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Memorandum (excluding any amendment or supplement thereto) and the Final Memorandum (excluding any amendment or supplement thereto), in each case provided to the prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Memorandum (excluding any amendment or supplement thereto) and the Final MemorandumMemorandum (excluding any amendment or supplement thereto).
(b) The representations and warranties of the Company contained in this Agreement were true and correct on and as of the Time of Sale and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company has performed all covenants and agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or prior to the Closing Date.
(c) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee the Chief Executive Officer or managing partner, as applicable, of each President of the Company and the Subsidiary Guarantors Chief Financial Officer or Chief Accounting Officer of the Company to the effect set forth in Section 5(a)(i) hereof, and further to the effect that (i) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Memorandum (excluding any amendment or supplement thereto) and the Final Memorandum (excluding any amendment or supplement thereto), in each case provided to the prospective purchasers of the Securities that is material and adverse to the Company and its subsidiaries, taken as a whole; (ii) the representations and warranties of each of the Company and the Guarantors contained in this Agreement were true and correct as of the Time of Sale and are true and correct as of the Closing Date and that each of Date; (iii) the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing ; and delivering such certificates may rely upon (iv) the best sale of his the Securities has not been enjoined (temporarily or her knowledge as to proceedings threatenedpermanently).
(cd) The Initial Purchasers shall have received on and dated as of the Closing Date Date, addressed to the Initial Purchasers, (i) an opinion and negative assurance letter of Burnet, Xxxxxxxxx Xxxxxx & Xxxxxx LLPL.L.P., Canadian outside counsel for the Company and the Guarantors, dated the Closing DateCompany, to the effect set forth in Exhibit A. Such A and (ii) an opinion of Xxxxxx X. Xxxxx, Xx., Chief Legal Officer for the Company, to the effect set forth in Exhibit B. The foregoing shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Shearman Xxxxx Xxxx & Sterling Xxxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, with respect to such matters as may be reasonably requested by the effect set forth in Exhibit C.Initial Purchasers.
(f) The On the date hereof, the Initial Purchasers shall have received on each of from the date hereof and the Closing Date Independent Accountant a “comfort letter, ” dated the date hereof or addressed to the Closing Date, as the case may beInitial Purchasers, in form and substance satisfactory to the Representative, covering the financial information in the Time of Sale Memorandum for the period during which the Independent Accountant acted as auditor for the Company and other customary matters. In addition, on the Closing Date, the Initial Purchasers shall have received from the Independent Accountant a “bring-down comfort letter” dated the Closing Date addressed to the Initial Purchasers, from KPMGin form and substance satisfactory to the Representative, LLP, independent public accountants for in the Trust and its subsidiaries, containing statements and information form of the type ordinarily included in accountants' "“comfort letters" to underwriters with respect to letter” delivered by the financial statements and certain Independent Accountant on the date hereof, except that (i) it shall cover the applicable financial information contained in each Memorandum; provided that the letter delivered on the Closing Date Final Memorandum and any amendment or supplement thereto and (ii) procedures shall use be brought down to a "cut-off date" not date no more than three business days prior to the Closing Date.
(g) The Initial Purchasers Company shall have received on each of executed and delivered the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beIndenture, in form and substance reasonably satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date Initial Purchasers shall use a "cut-off date" not more than three business days prior to the Closing Datehave received executed copies thereof.
(h) The Initial Purchasers shall have received on each sale of the date hereof and the Closing Date a letter, dated the date hereof Securities shall not be enjoined (temporarily or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered permanently) on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between you and executive officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(j) The Maximum Number of Underlying Securities shall have been approved for listing on The NASDAQ Global Select Market (“NASDAQ”), subject to official notice of issuance.
(k) On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such information, documents, letters and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice to the Company at any time on or prior to the Closing Date, (i) which termination shall be without liability on the Company part of any party to any other party, except that Sections 6(g), 8 and 11 hereof shall at all times be effective and shall survive such termination. The several obligations of the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory Initial Purchasers to purchase Optional Securities hereunder are subject to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory delivery to the Initial PurchaserRepresentative on the applicable Option Closing Date of such documents, not inconsistent with the foregoing, as the Representative may reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Ezcorp Inc)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its Subsidiaries or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiariesSubsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum as of the date of this Agreement provided to the prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetXxxxxx Xxxxxxx Xxxxxx & Brand, Xxxxxxxxx & Xxxxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of XxxxXxxxx Xxxxxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for General Counsel of the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Xxxxx Xxxx & Sterling Xxxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.covering such matters as they shall request.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, Ernst & Young LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information of the Company and AL US Development Venture LLC contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(g) The Initial Purchasers shall have received on “lock-up” agreements, each substantially in the form of Exhibit C hereto, between you and certain officers and directors of the date hereof Company relating to sales and the Closing Date a lettercertain other dispositions of shares of common stock or certain other securities, dated delivered to you on or before the date hereof or the Closing Datehereof, as the case may be, shall be in form full force and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered effect on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The A commitment letter with respect to the Company’s new credit facility with KeyBank National Association shall have been entered into as described in the Time of Sale Memorandum and the Final Memorandum, and the Initial Purchasers shall have received on each been furnished with documentation evidencing the execution of the date hereof and the Closing Date such commitment letter in a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior The Company has obtained a consent, dated as of April 13, 2011, from the lenders under its credit agreement dated as of December 2, 2005, as amended by and among the Company as borrower and Bank of America, N.A., as administrative agent, swing line lender, and l/c issuer, Wachovia Bank, National Association, as syndication agent, and other lender parties thereto, to permit the offering of the Securities. The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to you on the applicable Option Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is Date of such documents as you may reasonably satisfactory request with respect to the Initial Purchaser good standing of the Company, the due authorization ,execution and (ii) Harvest Sask Energy Trust authentication of the Additional Securities to be sold on such Option Closing Date and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory other matters related to the Initial Purchaserexecution and authentication of such Additional Securities.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) Date there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers Representatives shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and Company, to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Representatives shall have received on the Closing Date an opinion and negative assurance letter of Burnet, Xxxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx LLPProfessional Corporation, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit A. you. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx Procter LLP, U.S. counsel for the Company and the Guarantors, each dated the Closing Date, Date and in form and substance satisfactory to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinRepresentatives.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, KPMG LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof.
(f) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and the officers and directors of the Company for purposes of Section 16 of the Exchange Act relating to sales and certain other dispositions of shares of Class A Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(g) The several obligations of the Initial Purchasers shall have received to purchase Additional Securities hereunder are subject to the following conditions, and/or delivery to the Representatives on each the applicable Option Closing Date of the date hereof following:
(i) subsequent to the execution and delivery of this Agreement and prior to the applicable Option Closing Date there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Memorandum;
(ii) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date a letterpursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(iii) an opinion and negative assurance letter of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx Professional Corporation, outside counsel for the Company, dated the date hereof or the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion and negative assurance letter required by Section 5(c) hereof;
(iv) an opinion and negative assurance letter of Xxxxxxx Procter LLP, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion and negative assurance letter required by Section 5(d) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche KPMG LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements accountants, substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(e) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date; and
(vi) such other documents as the Representatives may reasonably request with respect to the good standing of the Company, the due authorization, execution and authentication of the Additional Securities to be sold on such Option Closing Date and other matters related to the execution and authentication of such Additional Securities.
(h) The Initial Purchasers A number of shares of Class A Common Stock equal to the sum of the Maximum Number of Underlying Securities shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants been approved for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered listing on the Closing Date shall use a "cut-off date" not more than three business days prior New York Stock Exchange, subject to the Closing Dateofficial notice of issuance.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (RingCentral Inc)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in or contemplated by the Final Time of Sale Memorandum provided to prospective purchasers as of the Securities date of this Agreement that, in your the Initial Purchasers’ judgment, is material and adverse and that makes it, in your the Initial Purchasers’ judgment, impracticable to market proceed with the offering, sale and delivery of the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that that, to such officer’s knowledge after due inquiry, the representations and warranties of each of the Company Issuer and the Guarantors contained in this Agreement that are qualified as to materiality or material adverse effect are true and correct, and those not so qualified are true and correct in all material respects, as of the Closing Date such date; and that each of the Company Issuer and the Guarantors each Guarantor has complied in all material respects with all of the agreements and has satisfied in all material respects all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threateneddate.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx Ropes & Xxxxxx Gray LLP, Canadian outside U.S. counsel for the Company Issuer and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. C-1 and a disclosure letter of Ropes & Gray LLP, dated the Closing Date, to the effect set forth in Exhibit C-2. Such opinion and letter shall be rendered to the Initial Purchasers at the request of the Company Issuer and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx each of (x) Xxxxxx and Xxxxxx (Cayman) LLP, U.S. outside Cayman Islands counsel for the Company and Issuer, dated the Closing Date, to the effect set forth in Exhibit D, (y) Xxxxxx Xxx LLP, outside Irish counsel for the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered E, and (z) Xxxxxxxxx X. Xxxxxxxx, Senior Vice President, Chief Legal Officer and Corporate Secretary, dated the Closing Date to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.effect set forth in Exhibit F.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Xxxxx Xxxx & Sterling Xxxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, and a disclosure letter of Xxxxx Xxxx & Xxxxxxxx LLP, dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit C.Initial Purchasers.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, Ernst & Young LLP, independent registered public accountants for the Trust and its subsidiariesaccounting firm, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three the date that is two business days prior to the Closing Date.
(g) . The Initial Purchasers shall have received on “lock up” agreements, each substantially in the form of Exhibit B hereto, between the Representative and the executive officers and directors of the Company relating to restrictions on sales and certain other dispositions of Ordinary Shares or certain other securities, delivered to the Representative on or before the date hereof hereof, shall be in full force and effect on the Closing Date a letter, dated the date hereof or Date. As of the Closing Date, a number of Ordinary Shares equal to the Maximum Number of Ordinary Shares shall have been approved for listing on the Nasdaq Global Select Market, subject only to official notice of issuance. The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion of Ropes & Gray LLP, outside U.S. counsel for the Issuer and the Guarantors, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion required by Section 5(c) hereof;
(iii) an opinion of each of (x) Xxxxxx and Xxxxxx (Cayman) LLP, outside Cayman Islands counsel for the Issuer, dated the Option Closing Date, (y) Xxxxxx Xxx LLP, outside Irish counsel for the Guarantors, dated the Option Closing Date, and (z) Xxxxxxxxx X. Xxxxxxxx, Senior Vice President, Chief Legal Officer and Corporate Secretary, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinions required by Section 5(d) hereof;
(iv) an opinion of Xxxxx Xxxx & Xxxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, and a disclosure letter of Xxxxx Xxxx & Xxxxxxxx LLP, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from Deloitte Ernst & Touche Young LLP, independent registered public accountants for Storm Energy Ltd ("Storm") containing statements accounting firm, substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(f) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.; and
(hvi) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, such other documents as the case Representative may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters reasonably request with respect to the financial statements good standing of the Company, the due authorization, execution and certain financial information contained in each Memorandum; provided that authentication of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateexecution and authentication of such Additional Securities.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Seagate Technology Holdings PLC)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the Company and of each Guarantor made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company and the Guarantors of its obligations hereunder and to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors its subsidiaries by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any changebeen a Material Adverse Effect, whether or any development involving a prospective change, not arising from transactions in the conditionordinary course of business, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken except as a whole, from that set forth in or contemplated in the Time of Sale Memorandum (exclusive of any supplement thereto) or the Final Memorandum provided to prospective purchasers (exclusive of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandumany supplement thereto).
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors each Guarantor, to the effect set forth in Section 5(a)(i5(a) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors each Guarantor has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx Xxxxxxx Coie LLP, Canadian counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. Exhibits A-1 and A-2. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of XxxxXxxxxxxx & Xxxxx LLP, Weissspecial counsel for the Company, Rifkinddated the Closing Date, Xxxxxxx to the effect set forth in Exhibit A-3. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxxxx Xxxxxx & Xxxxxxxx LLP, U.S. special Xxxxxxxx Islands counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(ef) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Xxxxxx Xxxxxx & Sterling Xxxxxxxx LLP, U.S. special counsel for the Initial PurchasersCompany on matters related to the Collateral, dated the Closing Date, to the effect set forth in Exhibit C.C. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(fg) The Initial Purchasers shall have received on the Closing Date:
(i) An opinion of Alexanders, Bermuda counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(ii) An opinion of Xxxxxxx Xxxx & Xxxxxxx Limited, Bermuda counsel for the Company on matters related to the Collateral, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(iii) An opinion of Houthoff, Netherlands counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(iv) An opinion of PwC Legal, Luxembourg counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(v) An opinion of Xxxx Xxxxxxxx, Spanish counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(vi) An opinion of Xxxxxx Xxxxxx & Xxxxxxxx LLP, English counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(vii) An opinion of Wikborg Rein Advokatfirma AS, Norway counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(viii) An opinion of Cains Advocates Limited, Isle of Man counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(ix) An opinion of Xxxxx & Xxxxxxx, Bahamas counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(h) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxxx Xxxxx L.L.P., counsel for the Initial Purchasers, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(i) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, KPMG LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(gj) Subsequent to the execution and delivery of this Agreement or, if earlier, the dates as of which information is given in the Time of Sale Memorandum (exclusive of any supplement thereto) and the Final Memorandum (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 5 or (i) any change, or any development involving a prospective change, in or affecting the general affairs, management, condition (financial or otherwise), stockholders’ equity, partners’ equity, members’ equity, results of operations, business, properties, assets or prospects of the Teekay Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in Time of Sale Memorandum and the Final Memorandum (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Time of Sale Memorandum (exclusive of any supplement thereto) and the Final Memorandum (exclusive of any supplement thereto).
(i) The Company shall have received a report from Ipreo LLC, the information agent for the Tender Offer, indicating the receipt by the Company of the Requisite Consents of the holders of the Outstanding Notes (ii) and the Proposed Amendments shall have become effective.
(l) The Indenture shall have been duly executed and delivered by a duly authorized officer of the Company, each of the Guarantors, the Trustee and the Collateral Agent, and the Securities shall have been duly executed and delivered by a duly authorized officer of the Company and duly authenticated by the Trustee.
(m) The Initial Purchasers shall have received on each conformed counterparts of the date hereof Security Documents that shall have been executed and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may bedelivered by duly authorized officers of each party thereto, in form and substance reasonably satisfactory to the Initial PurchasersRepresentative.
(n) Except as otherwise contemplated by the Security Documents, from Deloitte & Touche LLPeach document required by the Security Documents or under law or reasonably requested by the Representative, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter case, to be filed, registered or recorded, or delivered for filing on the Closing Date shall use a "cut-off date" not more than three business days or prior to the Closing DateDate in order to create in favor of the Trustee, for the benefit of the Holders, a perfected first-priority lien and security interest in the Collateral, prior and superior to the right of any other person (other than Permitted Liens), shall be executed and in proper form for filing, registration or recordation.
(ho) The Initial Purchasers shall have received on each of satisfactory evidence that the date hereof Company and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters Guarantors maintain insurance with respect to the financial statements Collateral as required under the Security Documents.
(p) The Trustee or the Collateral Agent shall have received a stock (or other equity interest) certificate and certain financial information contained in each Memorandum; provided blank, undated stock (or other equity interest) power for any Share Collateral that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days is certificated.
(q) On or prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust Guarantors shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory furnished to the Initial Purchaser Representative such further certificates and (ii) Harvest Sask Energy Trust and documents as the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is Representative may reasonably satisfactory to the Initial Purchaserrequest.
Appears in 1 contract
Samples: Purchase Agreement (Teekay Corp)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the several Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Company in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the performance by the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to The Initial Purchasers shall have received an opinion, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review Gxxxxxx, Savage, Kaplowitz, Wolf & Marcus, LLP, counsel for a possible change that does not indicate the direction of the possible changeCompany, in form and substance satisfactory to the rating accorded Initial Purchasers, to the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that effect set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final MemorandumExhibit A hereto.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of XxxxMayer, WeissBrown, Rifkind, Xxxxxxx Rxxx & Xxxxxxxx Maw LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel Counsel for the Initial Purchasers, dated the Closing Date, with respect to the effect set forth in Exhibit C.issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters.
(fc) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from KPMG, PricewaterhouseCoopers LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than within three business days prior of the date of such letter. References to the Final Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(d) On the Closing Date, the Company, the Subsidiary Guarantors, the Trustee and the other parties thereto shall have executed and delivered each of the Security Agreements together with:
(i) Acknowledgment copies of proper financing statements, duly filed on or before the Closing Date under the Uniform Commercial Code of all jurisdictions that the Trustee may deem necessary or desirable in order to protect second priority liens and security interests created under the Collateral Agreement; and
(ii) Evidence of the insurance required by the terms of the Collateral Documents.
(e) On the Closing Date, the Security Agreements shall be in full force and effect and the Trustee for the benefit of the holders of the Notes shall have a valid and perfected security interest in respect of the Collateral securing the obligations of the company under the Indenture and such security interest will not be subject to or subordinated to any Liens other than Permitted Liens.
(f) (i) None of the Company nor any of the Subsidiaries, shall have sustained, since the date of the latest audited financial statements included in the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Final Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum or the Final Memorandum, there shall not have been any change in the capital stock or long-term debt of the Company and its subsidiaries, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, stockholders' equity, earnings, condition (financial or otherwise), results of operations or management of the Company and its subsidiaries, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Final Memorandum (exclusive of any amendment or supplement thereto).
(g) The Initial Purchasers shall have received on each of the date hereof and a certificate, dated the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, and in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Chief Executive Officer and the Chief Financial Officer of the Company as to the financial statements accuracy of the representations and certain financial information contained warranties of the Company in each Memorandumthis Agreement at and as of the Closing Date; provided that the letter delivered Company has performed all covenants and agreements and satisfied all conditions on the Closing Date shall use a "cut-off date" not more than three business days its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d).
(h) The Notes shall have received initial ratings of not less than B- by Standard & Poor's Ratings Services and B3 by Mxxxx'x Investors Service, and, subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Notes or any notice or public announcement given of any intended or potential decrease in any such rating or that any such statistical rating organization has under surveillance or review, with possible negative implications, its rating of the Notes.
(i) The Notes shall have been designated for trading on PORTAL.
(j) The Notes shall be eligible for clearance and settlement through The Depository Trust Company.
(k) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received on each of such further certificates, documents or other information as they may have reasonably requested from the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing DateCompany.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Integrated Alarm Services Group Inc)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the several Initial Purchasers to purchase and pay for the Securities Notes and related Guarantees on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there There shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changedowngrading, below A3 from Mxxxx’x Investors Service, Inc., BBB+ from Standard and Poor’s Ratings Services and A- from Fitch Inc., in the senior unsecured rating accorded the Company or any of the Guarantors Guarantor or any of the Company’s or the Guarantor’s senior unsecured securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors Guarantor by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there There shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwiseposition, or in the earnings, business or operations of the Trust Guarantor and its subsidiaries, taken as a whole, from that set forth in the Final Offering Memorandum provided (exclusive of any amendments or supplements thereto subsequent to prospective purchasers the date of the Securities this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Offering Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, officer of each of the Company Company, with respect to the Company, and the Subsidiary Guarantors Guarantor, with respect to the Guarantor, to the effect set forth in Section 5(a)(i5(a) and to the effect that the representations and warranties of each of the Company and the Guarantors Guarantor contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors Guarantor has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Company and the Guarantor shall have furnished to the Initial Purchasers the opinion of Bxxxx X. Xxxxx, Vice President and General Counsel of Nabors Corporate Services, Inc., dated the Closing Date, substantially to the effect set forth on Annex 5(c) hereto. In giving such opinion, such counsel may rely as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company or the Guarantor and the Significant Subsidiaries and of public officials. Such opinion may be relied upon only by the Initial Purchasers in connection with the transactions contemplated by this Agreement, and may not be used or relied upon by the Initial Purchasers for any other purpose, or by any other person, firm, corporation or entity for any purpose whatsoever, without the prior written consent of such counsel. Such opinion may be limited to the laws of the State of Texas and the corporation, limited partnership and limited liability company statutes of the State of Delaware.
(d) The Company and the Guarantor shall have received on furnished to the Closing Date an Initial Purchasers the opinion of BurnetMilbank, Xxxxxxxxx Tweed, Hxxxxx & Xxxxxx MxXxxx LLP, Canadian special United States counsel for the Company and the GuarantorsGuarantor, dated the Closing Date, substantially to the effect set forth on Annex 5(d) hereto. In rendering their opinions pursuant to this Section 5(d), such counsel may rely, to the extent deemed advisable by such counsel, (i) as to factual matters on certificates of officers of the Company or the Guarantor and (ii) upon certificates of public officials. Such counsel shall state that such counsel has reviewed the Disclosure Package and the Final Offering Memorandum prepared by the Company, as well as certain corporate records and documents furnished to such counsel by the Company and such counsel has participated in Exhibit A. discussions with representatives of the Company and the Guarantor, counsel to the Company and counsel to the Initial Purchasers regarding the contents of the Disclosure Package and the Final Offering Memorandum and related matters; such counsel shall also state that the purpose of their professional engagement was not to establish or confirm factual matters set forth in the Disclosure Package or the Final Offering Memorandum and they have not undertaken to verify independently any of such factual matters and that moreover, many of the determinations required to be made in the preparation of the Disclosure Package and the Final Offering Memorandum involve matters of a non-legal nature; and that accordingly, they are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Disclosure Package and the Final Offering Memorandum and shall make no representation that they have independently verified the accuracy, completeness or fairness of such statements, except as stated in Sections 2, 3, and 11 of Annex 5(d). Such counsel shall also state that on the basis of and subject to the foregoing that they confirm that nothing has come to such counsel’s attention that causes such counsel to believe that: (i) the Disclosure Package as of the “Applicable Time” and as of the Closing Date contained or contains or (ii) the Final Offering Memorandum, as of its date or as of the Closing Date, contained or contains, an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need not comment in respect to (i) or (ii) above with respect to the financial statements and other financial information contained or incorporated by reference in the Disclosure Package or the Final Offering Memorandum). Such opinion shall be limited to the laws of the State of New York, the Federal laws of the United States and the General Corporation Law of the State of Delaware. Such opinion shall be rendered as of the Closing Date only in connection with this Agreement and will be solely for the benefit of the Initial Purchasers, and may not be relied upon, nor shown to or quoted from, for any other purpose, or to any other person, firm or corporation..
(e) The Company and the Guarantor shall have furnished to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of XxxxAxxxxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. special counsel for the Company and the GuarantorsGuarantor, dated the Closing Date, in the form set forth on Annex 5(e) hereto. Such opinion shall be limited to the effect set forth in Exhibit B. laws of Bermuda. Such opinion shall be rendered to the Initial Purchasers at the request as of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion only in connection with the Agreement and will be solely for the benefit of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Dateand may not be relied upon, nor shown to the effect set forth in Exhibit C.or quoted from, for any other purpose, or to any other person, firm or corporation.
(f) The Initial Purchasers shall have received on each from Vxxxxx & Exxxxx L.L.P., counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Disclosure Package, the Final Memorandum and other related matters as the Initial Purchasers may reasonably require, and the Company and the Guarantor shall have furnished to such counsel such documents as such counsel reasonably requests for the purpose of enabling such counsel to pass upon such matters.
(g) The Initial Purchasers shall have received on the date hereof of the Applicable Time and on the Closing Date a letterletters, dated the date hereof or of the Applicable Time and Closing Date, as the case may berespectively, in form and substance satisfactory to the Initial Purchasers, from KPMG, PricewaterhouseCoopers LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into each Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Datehereof.
(h) The Initial Purchasers shall have received on each the date of the date hereof Applicable Time and the Closing Date a letter, dated the date hereof or on the Closing Date, as certificates dated the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information date of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements Applicable Time and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (irespectively, and signed by the chief financial officer of the Guarantor, in the form set forth in Annex 5(h) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserhereto, as applicable.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations obligation of the Initial Purchasers Purchaser to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date and prior to any subsequent Option Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the Company’s securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiariesSubsidiaries, taken as a whole, from that set forth in the Final Memorandum provided (exclusive of any amendments or supplements thereto subsequent to prospective purchasers the date of the Securities this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of BurnetWxxxxxxx Mxxxxx, Xxxxxxxxx & Xxxxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to in the effect form set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.A.
(d) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion the opinions of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. special foreign counsel for the Company in Argentina, Brazil, Chile, Mexico and the GuarantorsPeru, dated the Closing Date, to in the effect respective forms set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company Exhibits B-0, X-0, X-0, X-0 and the Guarantors and shall so state thereinB-5.
(e) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial PurchasersPurchaser, dated the Closing Date, to the effect set forth in Exhibit C..
(f) The Initial Purchasers Purchaser shall have received received, on each of the date hereof and the Closing Date Date, a letter, letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersPurchaser, from KPMG, each of PricewaterhouseCoopers LLP and Deloitte & Touche LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained and incorporated by reference in each the Final Memorandum; provided that the letter letters delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof.
(g) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between the Initial Purchaser and certain officers of the Company as set forth in Schedule II hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Initial Purchaser on or before the date hereof, shall be in full force and effect on the Closing Date.
(gh) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof At or prior to the Closing Date, as the case may beCompany and the Trustee shall have executed and delivered the Indenture, and the Company and the Initial Purchaser shall have executed and delivered the Registration Rights Agreement in the form of Exhibit D hereto.
(i) The Initial Purchaser shall have received from the Chief Executive Officer and the Chief Financial Officer of the Company a letter, in form and substance satisfactory to the Initial PurchasersPurchaser and dated the date hereof, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" relating to underwriters with respect to the financial statements and certain financial information contained included or incorporated by reference in each Memorandum; provided the Final Memorandum that is not covered in the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date“comfort letters” referenced in 5(f) above.
(hj) The Counsel for the Initial Purchasers Purchaser shall have received on each been furnished with such documents as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the date hereof and Securities herein contemplated, or in order to evidence the Closing Date a letter, dated accuracy of any of the date hereof representations or warranties or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information fulfillment of any of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Dateconditions herein contained.
(ik) Prior The obligation of the Initial Purchaser to purchase Additional Securities hereunder is subject to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory delivery to the Initial Purchaser and on each Option Closing Date of each of the documents referred to above dated as of the Option Closing Date (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement except that is reasonably satisfactory insofar as any documents relate to the Initial PurchaserSecurities, they may be limited to covering only Additional Securities).
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by the Representative in its sole discretion of the following conditionsconditions precedent on or prior to the Closing Date:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors securities of the Company, Parent or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors its subsidiaries by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your the Representative’s judgment, is material and adverse and that makes it, in your the Representative’s judgment, impracticable to market proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are shall be true and correct on and as of the Time of Sale and on and as of the Closing Date as if made on and that each as of the Closing Date; the statements of the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date; the Company and the Guarantors has complied with shall have performed all of the covenants and agreements in all material respects and satisfied all of the conditions on its their part to be performed or satisfied hereunder on at or before prior to the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion a certificate, dated the Closing Date and signed by the Chief Executive Officer or President of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated Chief Financial Officer or Chief Accounting Officer of the Closing Date, Company to the effect set forth in Exhibit A. Such opinion shall be rendered Section 5(a)(i) and 5(a)(ii), and further to the Initial Purchasers at effect that the request representations and warranties of the Company and the Guarantors contained in this Agreement were true and shall so state thereincorrect in all material respects as of the Time of Sale and as of the Closing Date, provided that each such representation or warranty that contains materiality qualification in the text of such representation or warranty were true and correct in all respects; that the Company and the Guarantors have complied in all material respects with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder (unless otherwise waived by the Initial Purchasers hereunder) on or before the Closing Date; and that the sale of the Securities has not been enjoined (temporarily or permanently).
(d) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx Dechert LLP, U.S. outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, consistent in form and substance with the opinion and negative assurance letter, respectively, delivered in connection with the issuance of the Existing Notes, and reasonably satisfactory to the effect set forth in Exhibit B. Representative and counsel to the Initial Purchasers. Such opinion and letter shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein. In rendering such opinion, Dechert LLP shall have received and may rely upon any certificates and other documents and information as it may reasonably request to pass upon such matters.
(e) The Initial Purchasers shall have received on the Closing Date an opinion from each of Shearman & Sterling (i) Rxxx Xxxxx LLP, U.S. special regulatory counsel for the Company and (ii) Cxxxx Hill PLC, Michigan counsel for the Company, in each case, dated the Closing Date, in form and substance reasonably satisfactory to the Representative. Each such opinion shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(f) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Cxxxxx Xxxxxx & Rxxxxxx llp, counsel for the Initial Purchasers, dated the Closing Date, with respect to such matters as may be reasonably requested by the effect set forth in Exhibit C.Initial Purchasers.
(fg) The On the date hereof, the Initial Purchasers shall have received on each of from PricewaterhouseCoopers LLP, the date hereof and independent registered public accounting firm for the Closing Date Company, a “comfort letter, ” dated the date hereof or addressed to the Closing Date, as the case may beInitial Purchasers, in form and substance reasonably satisfactory to the Representative, covering the financial information included or incorporated by reference in the Time of Sale Memorandum and other customary matters. In addition, on the Closing Date, the Initial Purchasers shall have received from such accountants a “bring-down comfort letter” dated the Closing Date addressed to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial PurchasersRepresentative, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information in the form of the type ordinarily included in accountants' "“comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter letter” delivered on the Closing Date date hereof, except that (i) it shall use cover the financial information included or incorporated by reference in the Final Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a "cut-off date" not date no more than three business 3 days prior to the Closing Date.
(h) The Initial Purchasers Company shall have received on each of duly executed and delivered to the date hereof and Trustee an Officer’s Certificate (as defined in the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beIndenture), in form and substance reasonably satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information meeting the requirements of Section 2.14 of the type ordinarily included Indenture in accountants' "comfort letters" to underwriters with respect of the issuance of the Securities as “Additional Notes” as defined in and pursuant to the financial statements Indenture, and certain financial information contained in each Memorandum; provided the Initial Purchasers shall have received an executed copy thereof. The Securities shall have been duly executed and delivered by the Company or the Guarantors, as applicable, and the Notes shall have been duly authenticated by the Trustee.
(i) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that the letter delivered on would, as of the Closing Date Date, prevent the issuance or sale of the Securities; and the sale of the Securities shall use a "cut-off date" not more than three business days prior to be enjoined (temporarily or permanently) on the Closing Date.
(ij) Prior On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received such information, documents, letters and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
(k) The Amendment and the Concentra Intercompany Loan Agreement shall have become effective, and the incurrence of the New Term Loans and the Concentra Loan shall have been consummated, in each case, substantially concurrently with the issuance and sale of the Securities hereunder, on the terms and conditions described in the Time of Sale Memorandum.
(l) The Securities shall be eligible for clearance and settlement through The Depository Trust Company. If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice to the Company at any time on or prior to the Closing Date, (i) which termination shall be without liability on the Company part of any party to any other party, except that Sections 6(g), 8 and the Trust 11 hereof shall have entered into an Amended at all times be effective and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchasersurvive such termination.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the several Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Issuers and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Issuers’ and Guarantors’ officers made pursuant to the provisions hereof, to the performance by the Issuers of their covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to The Initial Purchasers shall have received an opinion, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review Xxxxx Lord LLP, counsel for a possible change that does not indicate the direction of the possible changeIssuers, in form and substance satisfactory to the rating accorded Initial Purchasers, to the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that effect set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final MemorandumExhibit A hereto.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, to of the effect set forth in Exhibit A. Such opinion shall be rendered to Counsel for the Initial Purchasers at with respect to the request issuance and sale of the Company Notes and such other related matters as the Initial Purchasers may reasonably require, and the Guarantors and Issuers shall so state thereinhave furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(fc) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from KPMG, KPMG LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” within three days of the date of such letter and that their procedures, shall extend to financial information in the Final Memorandum not more than three business days prior contained in the Preliminary Memorandum. References to the Closing DateOffering Memorandum in this Section 6(c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(gi) None of Partnership nor any of its subsidiaries, shall have sustained, since the date of the latest audited financial statements included in the Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto), any material loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Preliminary Memorandum and the Offering Memorandum, there shall not have been any material change in the capital stock or material increase in the long-term debt of the Partnership and its subsidiaries, or any material change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, stockholders’ equity, earnings, condition (financial or otherwise), results of operations or management of the Partnership and its subsidiaries, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Preliminary Memorandum and the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) None of the information set forth in the sections of the Offering Memorandum entitled “Use of Proceeds” and “Description of Other Indebtedness” shall have materially changed, if the effect of any such change, individually or in the aggregate, in the sole judgment of the Representative makes it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described in the Offering Memorandum, exclusive of any amendment or supplement thereto.
(f) The Initial Purchasers shall have received on each of the date hereof and a certificate, dated the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, and in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Chief Executive Officer and the Chief Financial Officer of General Partner as to the financial statements accuracy of the representations and certain financial information contained warranties of the Issuers and the Guarantors in each Memorandumthis Agreement at and as of the Closing Date; provided that the letter delivered Issuers and the Guarantors have performed all covenants and agreements and satisfied all conditions on the Closing Date shall use a "cut-off date" not more than three business days their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Sections 6(d), (e) and (g).
(g) Subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Issuers’ other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Issuers’ other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(h) The Notes shall be eligible for clearance and settlement through the Depository Trust Company.
(i) The Initial Purchasers shall have received on each a counterpart of the date hereof Registration Rights Agreement that shall have been executed and delivered by a duly authorized officers of the Issuers and the Closing Date a letter, dated the date hereof Guarantors;
(j) On or before the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersPurchasers and Counsel for the Initial Purchasers shall have received such further certificates, documents or other information as they may have reasonably requested from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company Issuers and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial PurchaserGuarantors.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the several Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Company and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution The Initial Purchasers shall have received (i) an opinion and delivery of this Agreement and prior to negative assurance statement, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changeXxxxxx & Xxxxxx L.L.P., in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook counsel for the Company or Company, the Guarantors by any "nationally recognized statistical rating organization," form of which is attached as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
Exhibit A, and (ii) there shall not have occurred any changean opinion, or any development involving a prospective changedated the Closing Date, in of Xxxxx X. Xxxxxxxxxx, internal counsel for the conditionCompany, financial or otherwise, or in the earnings, business or operations form of the Trust and its subsidiaries, taken which is attached as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.Exhibit B.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxx Xxxxxx & Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel Counsel for the Initial Purchasers, dated the Closing Date, with respect to the effect set forth in Exhibit C.issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters.
(fc) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from KPMG, Ernst & Young LLP, an independent registered public accountants for the Trust and its subsidiariesaccounting firm, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the historical consolidated financial statements and certain financial information contained of the Company and PPC included in each or incorporated by reference into the Offering Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" not more than ” within three business days prior of the date of such letter. References to the Closing DateOffering Memorandum and the Final Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(gi) None of the Company nor any of its subsidiaries, shall have sustained, since the date of the latest audited historical consolidated financial statements included or incorporated by reference in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Offering Memorandum and the Final Memorandum, there shall not have been any change in the capital stock or long-term debt of the Company and its subsidiaries, considered as one enterprise, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, earnings, financial condition, results of operations or management of the Company and its subsidiaries, considered as one enterprise, whether or not in the ordinary course of business, otherwise than as set forth in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the terms and in the manner described in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers shall have received on each of the date hereof and certificates dated the Closing Date a letterand in form and substance reasonably satisfactory to the Initial Purchasers, dated of (i) the date hereof or Chief Executive Officer and the Chief Financial Officer of the Company and (ii) each Guarantor: as to the accuracy of the representations and warranties of the Company and the Guarantors in this Agreement at and as of the Closing Date; that the Company and or the applicable Guarantor(s), as the case may be, in form have performed all covenants and substance satisfactory agreements and satisfied all conditions on its or their part to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(e) (in the case of the certificate from the Company’s officers only).
(f) The Notes shall have received initial ratings by Standard & Poor’s and Moody’s, and, subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Section 3(a)(62) under the Exchange Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Notes or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through the Common Depositary, Euroclear and Clearstream.
(h) The On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received on each of such further certificates, documents or other information as they may have reasonably requested from the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing DateCompany.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Belden Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date Purchaser are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, Company from that set forth in the Final Memorandum provided to prospective purchasers Time of Sale Circular as of the Securities date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final MemorandumTime of Sale Circular.
(b) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Purchaser shall have received on the Closing Date an (i) the favorable opinion of BurnetSkadden, Xxxxxxxxx Arps, Slate, Xxxxxxx & Xxxxxx Xxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, (ii) the favorable opinion of Xxxxxx XxXxxx, Esq., General Counsel of the Company, dated the Closing Date, and (iii) the favorable opinion of Xxxxxx Xxxxx, in-house intellectual property counsel for the Company, dated the Closing Date, in each case, in form and substance satisfactory to the effect set forth Initial Purchaser. The opinions of counsel for the Company referred to in Exhibit A. Such opinion this Section 5(c) shall be rendered to the Initial Purchasers Purchaser at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx Ropes & Xxxxxxxx Xxxx LLP, U.S. counsel for the Company and the GuarantorsInitial Purchaser, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered form and substance satisfactory to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinPurchaser.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers Purchaser shall have received on each of the date hereof and the Closing Date a letter, letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial PurchasersPurchaser, from KPMG, PricewaterhouseCoopers LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each Memorandumor incorporated by reference into the Time of Sale Circular and the Final Circular; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(gf) The Initial Purchasers shall have received on each obligations of the date hereof and Initial Purchaser to purchase Additional Securities hereunder are subject to the delivery to you on the applicable Option Closing Date a letter, dated the date hereof or the Closing Date, of such documents as the case you may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters reasonably request with respect to the financial statements good standing of the Company, the due authorization, execution and certain financial information contained in each Memorandum; provided that authentication of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateexecution and authentication of such Additional Securities.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Issuers in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Issuers’ officers made pursuant to the provisions hereof, to the performance by the Issuers of their covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to The Initial Purchasers shall have received an opinion, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review Ledgewood, P.C., counsel for a possible change that does not indicate the direction of the possible changeIssuers, in form and substance satisfactory to Xxxxx Fargo, to the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that effect set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final MemorandumExhibit A hereto.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each such other opinions of the Company and the Guarantorscounsel, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicableDate, of each of the Company covering regulatory and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct local matters as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatenedXxxxx Fargo shall reasonably request.
(c) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxx Xxxxxx & Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel Counsel for the Initial Purchasers, dated the Closing Date, with respect to the effect set forth issuance and sale of the Notes and such other related matters as Xxxxx Fargo may reasonably require, and the Issuers shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters. In rendering such opinion, such counsel may rely as to certain matters of law upon the opinion of Ledgewood referred to in Exhibit C.Section 6(a).
(fd) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to Xxxxx Fargo and Counsel for the Initial Purchasers, from KPMG, Xxxxx Xxxxxxxx LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided provided, however, that the letter delivered on the Closing Date letters referenced in this clause (d) shall use a "“cut-off date" not more than ” within three business days prior of the date of such letter. References to the Closing DateOffering Memorandum in this paragraph (d) with respect to any letter referred to above shall include any amendment or supplement thereto at the date of any such letter.
(i) None of the Issuers nor any of their subsidiaries nor any other Guarantor, shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Offering Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in each Memorandum, there shall not have been any change in the capital stock or long-term debt of any Issuer and its subsidiaries or any other Guarantor, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, stockholders’ equity, earnings, condition (financial or otherwise), results of operations or management of any Issuer and its subsidiaries or any other Guarantor, whether or not in the ordinary course of business, otherwise than as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of Xxxxx Fargo, so material and adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
(f) None of the information set forth in the sections of the Offering Memorandum, or documents incorporated by reference therein, entitled “Use of Proceeds,” “Capitalization,” “Executive Compensation,” “Certain Relationships and Related Transactions” and “Description of Other Indebtedness” shall have changed, nor shall there have been any change in the information with respect to the directors and officers of the Issuers, if the effect of any such change, individually or in the aggregate, in the sole judgment of Xxxxx Fargo make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described in the Offering Memorandum, exclusive of any amendment or supplement thereto.
(g) The Initial Purchasers shall have received on each of the date hereof and a certificate, dated the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, and in form and substance satisfactory to the Initial PurchasersXxxxx Fargo, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Chairman of the Managing Board, the President or a Vice President and the Chief Financial Officer of the General Partner as to the financial statements accuracy of the representations and certain financial information contained warranties of the Issuers in each Memorandumthis Agreement at and as of the Closing Date; provided that the letter delivered Issuers have performed all covenants and agreements and satisfied all conditions on the Closing Date shall use a "cut-off date" not more than three business days their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Sections 6(e), (f) and (j) hereof.
(h) The Initial Purchasers shall have received on each of the date hereof and a certificate, dated the Closing Date and in form and substance satisfactory to Xxxxx Fargo, of the Chairman of the Board, the President or a letterVice President and the Chief Financial Officer of the Finance Co as to the accuracy of the representations and warranties of the Finance Co in this Agreement at and as of the Closing Date; that the Finance Co has performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Sections 6(e), (f) and (j) hereof.
(i) The Initial Purchasers shall have received a certificate, dated the date hereof Closing Date and in form and substance satisfactory to Xxxxx Fargo, of the Chairman of the Board, the President or a Vice President and the Chief Financial Officer of each Guarantor, or the Closing DateGeneral Partner of such Guarantor, as the case may be, in form and substance satisfactory as to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information accuracy of the type ordinarily included representations and warranties of such Guarantor in accountants' "comfort letters" to underwriters with respect to the financial statements this Agreement at and certain financial information contained in each Memorandum; provided that the letter delivered on as of the Closing Date shall use a "cut-off date" not more than three business days Date; that such Guarantor has performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(e) hereof.
(ij) Prior Subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Partnership’s other debt securities by any “nationally recognized statistical rating agency,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Securities or any of the Partnership’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(k) The Notes shall be eligible for clearance and settlement through the Depository Trust Company.
(l) On the Closing Date, (i) the Company Purchasers shall have received the Indenture executed by the Issuers and the Trust Guarantors and the Trustee and such agreement shall be in full force and effect.
(m) On the Closing Date, the Purchasers shall have entered into an Amended received the Registration Rights Agreement executed by the Issuers and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Guarantors and such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchaser Purchasers and (ii) Harvest Sask Energy Trust and Counsel for the Trust Initial Purchasers shall have entered into an Amended and Restated Net Profit Interest Agreement that is received such further certificates, documents or other information as they may have reasonably satisfactory to requested from the Initial PurchaserIssuers.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company FFCA or any of the Guarantors or any of the FFCA's securities of the Company or any of the Guarantors or in the rating outlook for FFCA, or in the rating accorded any securities for which the Company or the Guarantors has acted as depositor, by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of any of the Trust and its subsidiaries, taken as a whole, Secured Loans from that set forth in the Final Memorandum provided (exclusive of any amendments or supplements thereto subsequent to prospective purchasers the date of the Securities this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of FFCA, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of FFCA contained in this Agreement are true and correct as of the Closing Date and that FFCA has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetKutak Rock, Xxxxxxxxx & Xxxxxx LLP, Canadian outside counsel for the Company FFCX, xxx Xxxpany and the GuarantorsSellers, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of FFCA and the Company and the Guarantors and shall so state therein.
(de) The Initial Purchasers shall have received on the Closing Date an opinion of XxxxThacher Proffitt & Wood, Weissoutside coxxxxx xxx XXXX, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the GuarantorsSellers, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of FFCA and the Company and the Guarantors and shall so state therein.
(ef) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Sidley & Sterling Austin, outside counsel for Owner Trust, dated the Closing Date, to the effect set forth in Exhibit C. Such opinion shall be rendered to the Initial Purchasers at the request of FFCA and the Company and shall so state therein.
(g) The Initial Purchasers shall have received on the Closing Date an opinion of Richards Layton & Finger, outside cxxxxxx xxx xxx Owner Trustee, dated the Closing Date, to the effect set forth in Exhibit D. Such opinion shall be rendered to the Initial Purchasers at the request of FFCA and the Company and shall so state therein.
(h) The Initial Purchasers shall have received on the Closing Date an opinion of Sidley & Austin, outside federal and Illinois tax counsel for FFCA, the Company and the Seller, dated the Closing Date, to the effect set forth in Exhibit E. Such opinion shall be rendered to the Initial Purchasers at the request of FFCA and the Company and shall so state therein.
(i) The Initial Purchasers shall have received on the Closing Date an opinion of Kutak Rock, outside Arizona tax couxxxx xxx XFCA, dated the Closing Date, to the effect set forth in Exhibit F. Such opinion shall be rendered to the Initial Purchasers at the request of FFCA and the Company and shall so state therein.
(j) The Initial Purchasers shall have received on the Closing Date an opinion of Thomas A. Rosiello, Esq., in-house xxxxxxx xxx xxx Xxustee and the Fiscal Agent, dated the Closing Date, to the effect set forth in Exhibit G. Such opinion shall be rendered to the Initial Purchasers at the request of FFCA and the Company and shall so state therein.
(k) The Initial Purchasers shall have received on the Closing Date an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, U.S. counsel for the Initial Xnitxxx Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.H.
(fl) If any counsel named in this Section 5 is required to deliver an opinion to Duff & Phelps Credit Rating Co. ("DCR"), Fxxxx XBCA, Inc. ("FITCH") or Moody's Investors Service, Inc. ("MXXXX'X") in connection with their ratings of the Securities, such opinion, dated the Closing Date and addressed to the Initial Purchasers, or a letter, dated the Closing Date, from each counsel delivering such opinions stating that the Initial Purchasers are authorized to rely on such opinions as though they were addressed to the Initial Purchasers.
(m) Copies of letters dated the Closing Date from DCR, Fitch and Moody's to the Company to the effect that the Securities have been definitively assigned the ratings set forth below the name of such rating agency on the cover page of the Preliminary Memorandum.
(n) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may behereof, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLPPricewaterhouseCoopers L.L.P., independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the effect that they have performed certain specified procedures as a result of which they have determined that such information as the Initial Purchasers may reasonably request of an accounting, financial statements and certain financial information or statistical nature contained in each Memorandum; provided that the letter delivered on Final Memorandum agrees with the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each accounting records of the date hereof and the Closing Date a letterFFCA, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended Sellers and Restated Net Profit Interest Agreement that is reasonably satisfactory the files of FFCA, the Company and the Sellers relating to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial PurchaserSecured Loans.
Appears in 1 contract
Samples: Purchase Agreement (Franchise Finance Corp of America)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Company, Tesoro and the Guarantors contained herein, to the performance by the Company, Tesoro and the Guarantors of their respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have discovered and disclosed to Tesoro on or prior to the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(b) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York City time, on the day following the date of this Agreement or at such later date and time as to which Tesoro and the Initial Purchasers may agree.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonable satisfactory in all material respects to counsel for the Initial Purchasers, and the Company and Tesoro shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) The Initial Purchasers shall have received from Fulbright & Xxxxxxxx L.L.P. their written opinion, as counsel to the Company and Tesoro, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit B hereto.
(e) The Initial Purchasers shall have received from Xxxxx X. Xxxx, Xx., general counsel of Tesoro, his written opinion, as counsel to Tesoro, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit C hereto.
(f) At the time of execution of this Agreement, the Initial Purchasers shall have received from each of Deloitte & Touche LLP, Ernst & Young LLP and Xxxxxx Xxxxxxxx LLP (collectively, the "Accountants") letters, in form and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof, (i) confirming that they are independent public accountants with respect to Tesoro under Rule 101 of the AICPA'S Code of Professional Conduct, and its interpretations and rulings, (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five business days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information, operating data and other matters ordinarily covered by accountants' "comfort letters" to underwriters, including the financial information contained or incorporated by reference in the Offering Memorandum as identified by you.
(g) With respect to the letters of the Accountants referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letters"), Tesoro shall have furnished to the Initial Purchasers letters (the "bring-down letters") of such Accountants, addressed to the Initial Purchasers and dated the Closing Date, (i) confirming that they are independent public accountants with respect to Tesoro under Rule 101 of the AICPA'S Code of Professional Conduct, and its interpretations and rulings, (ii) stating, as of the date of the bring-down letters (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five business days prior to the date of the bring-down letters), the conclusions and findings of such firm with respect to the financial information, operating data and other matters covered by the respective initial letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial letters.
(h) Tesoro shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of (i) the Senior Vice President and Chief Financial Officer of Tesoro and (ii) the Vice President and Treasurer of Tesoro stating that:
(i) The representations, warranties and agreements of Tesoro in Section 1 are true and correct as of the Closing Date and Tesoro has complied with all its agreements contained herein;
(A) Neither Tesoro nor any of the Subsidiaries has sustained since the date of the latest annual financial statements included in or incorporated by reference into the Offering Memorandum any material 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, otherwise than as set forth or contemplated in the Offering Memorandum and (B) since such date there has not been any material change in the capital stock, long-term debt or short-term debt of Tesoro or any of the Subsidiaries or any material change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity, results of operations or prospects of Tesoro and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Offering Memorandum; and
(iii) They have carefully examined the Preliminary Offering Memorandum and the Offering Memorandum and, in their opinion (A) the Preliminary Offering Memorandum and the Offering Memorandum, as of their respective dates did not include any untrue statement of a material fact and did not omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum.
(i) Neither Tesoro nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in or incorporated by reference into the Offering Memorandum (A) any material 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, otherwise than as set forth or contemplated in the Offering Memorandum, (B) since such date there shall not have been any material change in the capital stock, long-term debt or short-term debt of Tesoro or any of its Subsidiaries or any material change, or any development involving a prospective material change, in or affecting the general affairs, management, consolidated financial position, stockholders' equity or results of operations of Tesoro and its Subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any such case described in clause (A) or (B), is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner contemplated in the Offering Memorandum.
(j) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) Agreement, there shall not have occurred any downgrading, nor shall any written notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors Company's, Tesoro's or any of the Guarantor's securities of the Company by Xxxxx'x Investors Service, Inc. or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; andStandard & Poor's Ratings Group, Inc.
(iik) there The Company and the Trustee shall not have occurred any change, or any development involving a prospective change, in entered into the condition, financial or otherwise, or in Indenture and the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final MemorandumInitial Purchasers shall have received counterparts thereof.
(bl) Tesoro, the Guarantors and the Initial Purchasers shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts thereof.
(m) The Company, Tesoro and the Escrow Agent shall have entered into the Escrow Agreement and the Initial Purchasers shall have received counterparts thereof. The Company shall have deposited the net proceeds from the sale of the Notes in accordance with the Escrow Agreement.
(n) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the GuarantorsXxxxxxx Xxxxxxx & Xxxxxxxx, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the GuarantorsInitial Purchasers, their opinion, dated the Closing Date, with respect to the effect set forth in Exhibit A. Such opinion shall be rendered to such matters as the Initial Purchasers at the request of may reasonably require, and the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers Tesoro shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. furnished to such counsel such documents and information as they may reasonably request for the Company purpose of enabling them to pass upon such matters. All opinions, letters, evidence and the Guarantors, dated the Closing Date, to the effect set forth certificates mentioned above or elsewhere in Exhibit B. Such opinion this Agreement shall be rendered deemed to be in compliance with the Initial Purchasers at the request of the Company provisions hereof only if they are in form and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. substance reasonably satisfactory to counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) Date there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your the Representatives’ judgment, is material and adverse and that makes it, in your the Representatives’ judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers Representatives shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed on behalf of the Company by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Representatives shall have received on the Closing Date an opinion and negative assurance letter of BurnetXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxx & Xxxxxx LLPProfessional Corporation (“WSGR”), Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to substantially in the effect form set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.B.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers Representatives shall have received on each of the date hereof and the Closing Date a certificate of the principal financial officer of the Company dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Representatives containing statements and information with respect to certain financial information included or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum.
(e) The Representatives shall have received on the Closing Date an opinion and negative assurance letter of Xxxxxxx Procter LLP (“Xxxxxxx”), counsel for the Initial Purchasers, dated the Closing Date, in the form and substance satisfactory to the Representatives.
(f) The Representatives shall have received, on each of the date hereof and the Closing Date, a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLPE&Y, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters initial purchasers with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof.
(g) The Securities shall be eligible for clearance and settlement through DTC.
(h) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and the officers (as defined in Rule 16a-1(f) under the Exchange Act) and the directors of the Company relating to restrictions on sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.
(gi) The Initial Purchasers Representatives’ counsel shall have received on each an executed copy of the date hereof Indenture.
(j) The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date a letterpursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of WSGR, outside counsel for the Company, dated the date hereof or the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion required by Section 5(c) hereof;
(iii) a certificate of the principal financial officer of the Company, dated the Option Closing Date, to the same effect as the certificate required by Section 5(d) hereof;
(iv) an opinion and negative assurance letter of Xxxxxxx, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLPE&Y, independent public accountants for Storm Energy Ltd ("Storm") containing statements accountants, substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(f) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.; and
(hvi) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, such other documents as the case Representatives may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters reasonably request with respect to the financial statements good standing of the Company, the due authorization, execution and certain financial information contained in each Memorandum; provided that authentication of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateexecution and authentication of such Additional Securities.
(ik) Prior A number of shares of Common Stock equal to the Closing Date, (i) sum of the Company and the Trust Maximum Number of Underlying Securities shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory been approved for listing on the New York Stock Exchange, subject to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserofficial notice of issuance.
Appears in 1 contract
Samples: Purchase Agreement (Box Inc)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the debt securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any material change, or any development involving a prospective changeMaterial Adverse Effect, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an the chief executive officer, trustee officer or managing partner, as applicable, of each the chief financial officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are (i) true and correct in all material respects (other than representations and warranties qualified by materiality, in which case such representations shall be true and correct in all respects) as of the Closing Date and with the same effect as if made on such delivery date, (ii) that each of the Company and the Guarantors has complied in all material respects with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date, and (iii) since the date of the most recent financial statements included in the Time of Sale Memorandum, there has been no material adverse change in the financial condition, earnings, business or properties of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the Time of Sale Memorandum. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxx & Xxxxxx LLPProfessional Corporation, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of XxxxXxxx X. Xxxxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the GuarantorsCompany’s General Counsel, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.B.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Xxxxxxx Xxxxxxx & Sterling Xxxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit C.Initial Purchasers.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beapplicable, in form and substance satisfactory to the Initial Purchasers, from KPMG, PricewaterhouseCoopers LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing DateJuly 21, 2014.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beapplicable, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche KPMG LLP, independent public accountants for Storm Energy Ltd ("Storm") accountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information of Inotera Memories, Inc. (“Inotera”) contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing DateDecember 31, 2012.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may beapplicable, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLPErnst & Young ShinNihon LLC, independent public accountants for EnCana Corporation ("EnCana")auditors, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information of Elpida contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing DateFebruary 28, 2013.
(i) Prior to the Closing Date, (i) the Company shall have received all waivers or consents under any agreement or other instrument binding upon the Company or any of its subsidiaries, including any indentures, mortgage, deed of trust, loan agreement, stockholder agreement or other agreement that is material to the Company and its subsidiaries, taken as a whole, that are necessary for the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to issuance of the Initial Purchaser and (ii) Harvest Sask Energy Trust Securities and the Trust shall have entered into an Amended performance by the Company of its obligations under this Agreement, the Indenture and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial PurchaserSecurities.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers hereunder to purchase and pay for the Firm Securities on the Closing Date are subject to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) Subsequent the representations and warranties of the Company contained herein are true and correct on and as of the Closing Date as if made on and as of the Closing Date and the Company shall have complied with all agreements and all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(b) subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) , there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or of (ii) any review for a or possible change that does not indicate the direction of the possible change, an improvement in the rating accorded any securities of or guaranteed by the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ”, as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and;
(iic) since the respective dates as of which information is given in the Final Memorandum (excluding any amendment or supplement thereto after the date hereof) there shall not have occurred been any (i) change in the capital stock or long-term debt of the Company or any of the Subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, its financial condition, financial management or otherwise, or in the earnings, business or results of operations of the Trust Company and its subsidiaries, taken as a whole, from that otherwise than as set forth in the Final Memorandum provided Memorandum; or (ii) any suspension or material limitation of trading in the capital stock of the Company on the NASDAQ, the effect of which in the judgment of the Initial Purchasers makes it impracticable or inadvisable to prospective purchasers proceed with the offering or the delivery of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market on the Securities Closing Date on the terms and in the manner contemplated in the Final Memorandum.;
(bd) The the Initial Purchasers shall have received on and as of the Closing Date a certificate from each of an executive officer of the Company and Company, with specific knowledge about the GuarantorsCompany’s financial matters, dated satisfactory to the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors Initial Purchasers to the effect set forth in Section 5(a)(iSections 6(a) and 6(b) and to the further effect that there has not occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the representations and warranties business, financial position, stockholders’ equity or results of each operations of the Company and its subsidiaries, taken as a whole from that set forth in the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.Final Memorandum;
(ce) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx Xxxxx & Xxxxxx LLPL.L.P., Canadian outside counsel for the Company and Company, shall have furnished to the GuarantorsInitial Purchasers their written opinion, dated the Closing Date, to in the effect set forth in form of Exhibit A. Such opinion A hereto;
(f) Corporate Counsel of the Company, shall be rendered have furnished to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantorshis written opinion, dated the Closing Date, to in the effect set forth in form of Exhibit B. Such opinion B hereto;
(g) on the date of the issuance of the Final Memorandum and also on the Closing Date, BDO Xxxxxxx, LLP shall be rendered have furnished to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasersletters, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each respective dates of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may bedelivery thereof, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiariesyou, containing statements and information of the type ordinarily customarily included in accountants' "accountants “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.;
(gh) The the Initial Purchasers shall have received on each and as of the date hereof and the Closing Date a letteran opinion of Xxxxx Xxxx & Xxxxxxxx, dated counsel to the date hereof or the Closing Date, as the case may beInitial Purchasers, in form and substance satisfactory to you;
(i) the “lock-up” agreements, each substantially in the form of Exhibit C hereto, between you and the shareholders, officers and directors of the Company identified on Exhibit C-1 relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date;
(j) an application for the listing of the Underlying Securities shall have been submitted to the NASDAQ;
(k) the Securities shall have been approved for trading on PORTAL, subject only to notice of issuance at or prior to the time of purchase; and
(l) on or prior to the Closing Date the Company shall have furnished to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements Purchasers such further certificates and information documents as the Initial Purchasers or their counsel shall reasonably request. The obligations of the type ordinarily included in accountants' "comfort letters" Initial Purchaser to underwriters purchase Additional Securities hereunder are subject to the delivery to you on the Option Closing Date of such documents as you may reasonably request including with respect to the financial statements good standing of the Company, the due authorization, execution, authentication and certain financial information contained in each Memorandum; provided that issuance of the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior Additional Securities and other matters related to the Closing Date.
(h) The Initial Purchasers shall have received on each execution, authentication and issuance of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing DateAdditional Securities.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors its subsidiaries or any of the securities of the Company or of any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors any of its subsidiaries by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum (excluding any amendments or supplements thereto) provided to the prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, officer of each of the Company and the Subsidiary Guarantors Guarantors, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct in all material respects as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date and a certificate, dated the Closing Date, and signed by an officer of each of the Company and the Guarantors with respect to the matters set forth in Exhibit A hereto. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings and labor disputes threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx Kxxxxxxx & Xxxxxx Exxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, outside U.S. counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(d) The Initial Purchasers shall have received on the Guarantors Closing Date an opinion of Solertia Asesores, S.C. (Axxxxxx Abogados), outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Dxxxx Xxxx & Sterling LLPWxxxxxxx, U.S. counsel for the Initial Purchasers, dated the Closing Date, with respect to such matters as the Initial Purchasers may reasonably request.
(f) The Initial Purchasers shall have received on the Closing Date an opinion of Mxxxxxx, Angoitia, Cxxxxx x Xxxxxxx, S.C., counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.D.
(g) The Initial Purchasers Company shall have received authorized Deutsche Bank Luxembourg S.A. (the “Luxembourg Listing Agent”) to make or cause to be made an application on each the Company’s behalf for the Memorandum relating to the Notes to be approved by the Luxembourg Stock Exchange (the “Stock Exchange”) for listing of the date hereof and Notes on the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information official list of the type ordinarily included in accountants' "comfort letters" Stock Exchange and for the Notes to underwriters with respect be admitted to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered trading on the Closing Date shall use a "cut-off date" not more than three business days prior to EuroMTF market of the Closing DateStock Exchange.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLPS.C., independent public accountants for EnCana Corporation ("EnCana")accountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the Closing Datedate hereof.
(i) Prior to the Closing Date, (i) the Company and the Trust CT Corporation System shall have entered into an Amended been appointed and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaseraccepted appointment as agent for service of process as specified in Section 14.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by the Representative in their sole discretion of the following conditionsconditions precedent on or prior to the Closing Date:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors its subsidiaries by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to prospective purchasers of the Securities (excluding any amendments or supplements thereto) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The representations and warranties of the Issuer and the Guarantors contained in this Agreement shall be true and correct on and as of the Time of Sale and on and as of the Closing Date as if made on and as of the Closing Date; the Issuer and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date.
(c) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company Company, on behalf of the Issuer and the Subsidiary Guarantors each Guarantor, to the effect set forth in Section 5(a)(i) and 5(a)(ii), and further to the effect that the representations and warranties of each of the Company Issuer and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company Issuer and the Guarantors has have complied in all material respects with all of the agreements and satisfied all of the conditions on its their part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(cd) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Burnet, Xxxxxxxxx Xxxxxxx Xxxxxxx & Xxxxxx Xxxxxxxx LLP, Canadian outside counsel for the Company Issuer and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Exhibits A-1 and A-2. Such opinion and letter shall be rendered to the Initial Purchasers Representative at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors Issuer and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, with respect to such matters as may be reasonably requested by the effect set forth in Exhibit C.Representative.
(f) On the date hereof, the Initial Purchasers shall have received from each of PwC CT, the independent registered public accounting firm for the Company, and PwC MO, the independent registered public accounting firm for DST, a “comfort letter” dated the date hereof addressed to the Initial Purchasers, in form and substance satisfactory to the Representative, each covering certain of the financial information in the Time of Sale Memorandum and other customary matters. In addition, on the Closing Date, the Representative shall have received from each of such accountants a “bring-down comfort letter” dated the Closing Date addressed to the Initial Purchasers, in form and substance satisfactory to the Representative, each in the form of the “comfort letters” delivered on the date hereof, except that (i) it shall cover the financial information in the Final Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than 3 days prior to the Closing Date.
(g) The Initial Purchasers shall have received received, on each of the date hereof and the Closing Date Date, a letter, certificate dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial PurchasersRepresentative, from KPMG, LLP, independent public accountants for the Trust and its subsidiariesCompany’s Chief Financial Officer, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters a “CFO Certificate” each providing “management comfort” with respect to the financial statements and certain financial information contained in each the Time of Sale Memorandum and the Final Memorandum; provided that .
(h) The Issuer and the letter Guarantors shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Representative, and the Representative shall have received executed copies thereof.
(i) The sale of the Securities shall not be enjoined (temporarily or permanently) on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(gj) The On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received on each such information, documents, letters and opinions as they may reasonably request for the purposes of enabling them to pass upon the issuance and sale of the date hereof Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and the Closing Date a letterwarranties, dated the date hereof or the Closing Datesatisfaction of any of the conditions or agreements, herein contained. If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the case may be, in form and substance satisfactory Representative by notice to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered Issuer at any time on the Closing Date shall use a "cut-off date" not more than three business days or prior to the Closing Date.
(h) The Initial Purchasers , which termination shall have received be without liability on each the part of the date hereof and the Closing Date a letterany party to any other party, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"except that Sections 6(g), containing statements 8 and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements 11 hereof shall at all times be effective and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Datesurvive such termination.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (SS&C Technologies Holdings Inc)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent Except as contemplated by the Time of Sale Memorandum and the Final Memorandum, subsequent to the execution and delivery of this Agreement and prior subsequent to the Closing Date:
(i) respective dates as of which information is given in the Time of Sale Memorandum and the Final Memorandum, there shall not have occurred been any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any changeMaterial Adverse Change, or any development involving that would reasonably be expected to result in a prospective changeMaterial Adverse Change (whether or not arising in the ordinary course of business), that, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your Representatives’ judgment, is material and adverse and that makes it, in your judgment, impracticable it impractical or inadvisable to market offer or deliver the Securities on the terms and in the manner contemplated in the Time of Sale Memorandum and in the Final Memorandum.
(b) The Initial Purchasers Representatives shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed on behalf of the Company by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Representatives shall have received on the Closing Date an opinion and negative assurance statement of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation (“WSGR”), outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(d) The Representatives shall have received on the Closing Date an opinion of BurnetXxx Xxxxx, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for General Counsel and Chief Compliance Officer of the Company and the GuarantorsCompany, dated the Closing Date, in form and substance reasonably satisfactory to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state thereinRepresentatives.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers Representatives shall have received on each of the date hereof and the Closing Date a certificate of the principal financial officer of the Company dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Representatives containing statements and information with respect to certain financial information included or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum.
(f) The Representatives shall have received on the Closing Date an opinion and negative assurance statement of Xxxxxxx Procter LLP (“Xxxxxxx”), counsel for the Initial Purchasers, dated the Closing Date, in the form and substance satisfactory to the Representatives.
(g) The Representatives shall have received, on each of the date hereof and the Closing Date, a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLPBDO, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters initial purchasers with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided provided, that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof.
(h) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(i) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and the officers (as defined in Rule 16a-1(f) under the Exchange Act) and the directors of the Company relating to restrictions on sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representatives on or before the date hereof (each a “Lock-Up Agreement” and collectively the “Lock-Up Agreements”), shall be in full force and effect on the Closing Date.
(gj) The Initial Purchasers Purchasers’ counsel shall have received on each an executed copy of the date hereof Indenture.
(k) The Representatives shall have received a copy of the amendment, dated December 7, 2022, in form and substance satisfactory to the Representatives, to the Loan and Security Agreement, dated July 9, 2020, as amended, by and between the Company and Silicon Valley Bank.
(l) The several obligations of the Initial Purchasers to purchase Additional Securities hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of the following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date a letterpursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance statement of WSGR, outside counsel for the Company, dated the date hereof or the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion required by Section 5(c) hereof;
(iii) an opinion of Xxx Xxxxx, General Counsel and Chief Compliance Officer of the Company, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) a certificate of the principal financial officer of the Company, dated the Option Closing Date, to the same effect as the certificate required by Section 5(e) hereof;
(v) an opinion and negative assurance statement of Xxxxxxx, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(f) hereof;
(vi) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLPBDO, independent public accountants for Storm Energy Ltd ("Storm") containing statements accountants, substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(g) hereof; provided provided, that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.; and
(hvii) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, such other documents as the case Representatives may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters reasonably request with respect to the financial statements good standing of the Company, the due authorization, execution and certain financial information contained in each Memorandum; provided that authentication of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior and other matters related to the Closing Dateexecution and authentication of such Additional Securities.
(im) Prior A number of shares of Common Stock equal to the Closing Date, (i) sum of the Company and the Trust Maximum Number of Underlying Securities shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserbeen submitted for listing on NASDAQ.
Appears in 1 contract
Samples: Purchase Agreement (Cutera Inc)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the Company’s securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, subsidiaries taken as a wholeone enterprise, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet(i) Fried, Xxxxxxxxx Frank, Harris, Xxxxxxx & Xxxxxx Xxxxxxxx LLP, Canadian outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, to the effect set forth in Exhibit A. A-1 and (ii) the General Counsel of the Company, dated the Closing Date, to the effect set forth on Exhibit A-2. Such opinion opinions shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of XxxxXxxxx Xxxx & Xxxxxxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.B.
(fe) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, (i) Deloitte & Touche LLP, independent public accountants for accountants, with respect to the Trust financial information contained in the Memorandum relating to the Company and its subsidiaries(ii) PricewaterhouseCoopers LLP, independent public accountants, with respect to the financial information contained in the Memorandum relating to ACS and OFS BrightWave, in each case containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into each Memorandum; provided that that, in the letter case of the letters delivered on the Closing Date relating to the Company and to OFS Brightwave, such letters shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof.
(f) The “lock-up” agreements, each substantially in the form of Exhibit C hereto, between you and each of the executive officers and directors of the Company listed on Schedule II hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(g) . The several obligations of the Initial Purchasers shall have received to purchase Additional Securities hereunder are subject to the delivery to you on each of the date hereof and the applicable Option Closing Date a letter, dated the date hereof or the Closing Date, of such documents as the case you may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters reasonably request with respect to the financial statements good standing of the Company, the due authorization, execution and certain financial information contained in each Memorandum; provided that authentication of the letter delivered Additional Securities to be sold on the such Option Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Dateand other matters as you may reasonably request.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Commscope Inc)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Firm Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed on behalf of the Company by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(i5(a) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date (i) an opinion and (ii) a negative assurance letter of BurnetXxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Xxxxxxxxx & Xxxxxx LLPProfessional Corporation (“WSGR”), Canadian outside counsel for the Company Company, in form and the Guarantors, dated the Closing Date, substance satisfactory to the effect set forth in Exhibit A. you. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date (i) an opinion and (ii) a negative assurance letter of Xxxx, Weiss, Rifkind, Xxxxxxx Xxxxx Xxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit C.you.
(fe) The Initial Purchasers shall have received received, on each of the date hereof and the Closing Date Date: (i) a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") accountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained in each or incorporated by reference into the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior the date hereof; and (ii) a certificate, in the form of Exhibit C hereto, signed by the Chief Financial Officer of the Company.
(f) A “Listing of Additional Shares Notification” shall have been submitted to The Nasdaq Stock Market LLC (“Nasdaq”) and Nasdaq shall have completed its review of such submission.
(g) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and certain shareholders, officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(h) The several obligations of the Initial Purchasers shall have received to purchase Additional Securities hereunder are subject to the delivery to you on each the applicable Option Closing Date of the date hereof following:
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 5(b) hereof remains true and correct as of such Option Closing Date;
(ii) (i) an opinion and (ii) a letternegative assurance letter of WSGR, dated the date hereof or the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the case may beopinion required by Section 5(c) hereof;
(iii) (i) an opinion and (ii) a negative assurance letter of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Initial Purchasers, dated the Option Closing Date, relating to the Additional Securities to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 5(d) hereof;
(iv) (A) a letter dated the Option Closing Date, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, Deloitte & Touche LLP, independent public accountants for EnCana Corporation ("EnCana")accountants, containing statements substantially in the same form and information of substance as the type ordinarily included in accountants' "comfort letters" to underwriters with respect letter furnished to the financial statements and certain financial information contained in each MemorandumInitial Purchasers pursuant to Section 5(e) hereof; provided that the letter delivered on the Option Closing Date shall use a "“cut-off date" ” not more earlier than three business days prior to the such Option Closing Date.; and (B) a certificate, in the form of Exhibit C hereto, signed by the Chief Financial Officer; and
(iv) Prior such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Securities to be sold on such Option Closing Date, (i) the Company Date and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory other matters related to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaserissuance of such Additional Securities.
Appears in 1 contract
Samples: Purchase Agreement (Nutanix, Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given received of (A) any intended or potential downgrading or of (B) any review for a or possible change that does not indicate the direction of the a possible change, in the rating accorded the Company or any of the Guarantors or any of the Company’s securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any material adverse change, or any development involving that could reasonably be expected to result in a prospective material adverse change, in the financial condition, financial or otherwise, or in the earnings, business or operations of the Trust and Company or its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Offering Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each officer of the Company and the Subsidiary Guarantors Company, to the effect set forth in Section 5(a)(iclauses (a)(i) and (ii) above and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers officer signing and delivering such certificates certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of BurnetJxxxx X. Xxxxxx, Xxxxxxxxx & Xxxxxx LLPEsq., Canadian counsel for the Company Senior Vice President and the Guarantors, General Counsel of Wxxxxxxx dated the Closing Date, with such exceptions and qualifications as shall be agreed by the Initial Purchasers, to the effect set forth in Exhibit A. Such The opinion of Jxxxx X. Xxxxxx, Esq. described in Exhibit A shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxxfrom Gxxxxx, Weiss, Rifkind, Xxxxxxx Dxxx & Xxxxxxxx Cxxxxxxx LLP, U.S. special counsel for the Company and the GuarantorsCompany, dated the Closing Date, with such exceptions and qualifications as shall be agreed by the Initial Purchasers, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.B.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Dxxxx Xxxx & Sterling LLPWxxxxxxx, U.S. counsel for the Initial Purchasers, dated the Closing Date, covering the matters referred to in the last paragraph of Exhibit A, and such other matters as shall be agreed by the Initial Purchasers. With respect to paragraph 9 of Exhibit A, Dxxxx Xxxx & Wxxxxxxx may state that their opinion and belief are based upon their participation in the preparation of the Offering Memorandum (excluding any documents incorporated by reference therein) and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. Dxxxx Xxxx & Wxxxxxxx may also state that they have relied solely on the opinion of Jxxxx X. Xxxxxx, Esq., as to matters relating to the effect set forth in Exhibit C.regulation of the Company by the Federal Energy Regulatory Commission.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, Ernst & Young LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each the Offering Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Transcontinental Gas Pipe Line Corp)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Company and the Guarantors in Section 2 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the officers of the Company and the Guarantors made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to The Initial Purchasers shall have received an opinion, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible changeXxxxxxx Coie LLP, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook counsel for the Company or and the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective changeGuarantors, in form and substance satisfactory to the conditionInitial Purchasers, financial or otherwise, or in to the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that effect set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final MemorandumExhibit A hereto.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorsan opinion, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicableDate, of each Counsel for the Initial Purchasers, with respect to the issuance and sale of the Company Notes and such other related matters as the Initial Purchasers may reasonably require, and the Subsidiary Guarantors Company shall have furnished to such counsel such documents as it may reasonably request for the effect set forth in Section 5(a)(i) and purpose of enabling it to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering pass upon such certificates may rely upon the best of his or her knowledge as to proceedings threatenedmatters.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx a “comfort letter” from Ernst & Xxxxxx Young LLP, Canadian counsel the independent public accountant for the Company and the Guarantors, dated as of the date hereof, addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers. In addition, the Initial Purchasers shall have received a “bring-down comfort letter” from Ernst & Young LLP, dated as of the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered addressed to the Initial Purchasers and in form and substance satisfactory to the Initial Pur- chasers and Counsel for the Initial Purchasers. Each letter shall use a “cut-off date” within three days of the date of such letter and the procedures shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the request date of the Company and the Guarantors and shall so state thereinsuch letter.
(d) The Initial Purchasers shall have received on a certificate, dated the Closing Date an opinion Date, of Xxxxthe Chief Executive Officer and the Chief Financial Officer of the Company to the effect that:
(i) the representations and warranties of the Company and the Guarantors in this Agreement are true and correct as if made on and as of the Closing Date; the Offering Memorandum (exclusive of any amendment or supplement after the date hereof) does not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, Weissin light of the circumstances under which they were made, Rifkindnot misleading; and the Company and the Guarantors have, Xxxxxxx & Xxxxxxxx LLPin all material respects, U.S. counsel for performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date; and
(ii) none of the Company, the Guarantors or any of their subsidiaries has sustained, since the date of the latest audited financial statements included in the Offering Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, flood, hurricane, accident or other calamity, whether or not covered by insurance, or from any labor dispute or any legal or governmental proceeding that is material to the Company and the Guarantors, dated and there has not been any material adverse change in the Closing Datebusiness, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request operations, properties, assets, liabilities, net worth, condition (financial or otherwise) or prospects of the Company and the Guarantors and shall so state thereinGuarantors, except in each case as described in or contemplated by the Offering Memorandum (exclusive of any amendment or supplement thereto).
(e) The Registration Rights Agreement shall have been executed and delivered by all the parties thereto.
(f) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLPsuch further certificates, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall documents or other information as they may have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, reasonably requested from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended Guarantors. All opinions, certificates, letters and Restated Net Profit Interest documents delivered pursuant to this Agreement that is will comply with the provisions hereof only if they are reasonably satisfactory to the Initial Purchaser Purchasers and (ii) Harvest Sask Energy Trust and Counsel for the Trust Initial Purchasers. The Company shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory furnish to the Initial PurchaserPurchasers such conformed copies of such opinions, certificates, letters and documents in such quantities as the Initial Purchasers and Counsel for the Initial Purchasers shall reasonably request.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by the Representative in its sole discretion of the following conditionsconditions precedent on or prior to the Closing Date:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors securities of the Company, Select Medical Holdings Corporation (“Parent”) or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors its subsidiaries by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are shall be true and correct on and as of the Time of Sale and on and as of the Closing Date as if made on and that each as of the Closing Date; the statements of the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date; the Company and the Guarantors has complied with shall have performed all of the covenants and agreements in all material respects and satisfied all of the conditions on its their part to be performed or satisfied hereunder on at or before prior to the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion a certificate, dated the Closing Date and signed by the Chief Executive Officer or President of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated Chief Financial Officer or Chief Accounting Officer of the Closing Date, Company to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.in
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The several obligations of the several Initial Purchasers to purchase and pay for the Securities on the Closing Date are Notes shall be subject to the accuracy of the representations and warranties of the Company and the Guarantors in Section 1 hereof, in each case as of the date hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the statements of the Company’s officers made pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their covenants and agreements hereunder and to the following additional conditions:
(a) Subsequent to the execution The Initial Purchasers shall have received (i) an opinion and delivery of this Agreement and prior to negative assurance statement, dated the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook Counsel for the Company or Company, the Guarantors by any "nationally recognized statistical rating organization," form of which is attached as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
Exhibit A, and (ii) there shall not have occurred any changean opinion, or any development involving a prospective changedated the Closing Date, in of Xxxxx X. Xxxxxxxx, Esq., internal counsel for the conditionCompany, financial or otherwise, or in the earnings, business or operations form of the Trust and its subsidiaries, taken which is attached as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.Exhibit B.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantorsopinion, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel Counsel for the Initial Purchasers, dated the Closing Date, with respect to the effect set forth in Exhibit C.issuance and sale of the Notes and such other related matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents as it may reasonably request for the purpose of enabling it to pass upon such matters.
(fc) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to the Initial Purchasers and Counsel for the Initial Purchasers, from KPMG, Ernst & Young LLP, an independent registered public accountants for the Trust and its subsidiariesaccounting firm, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the historical consolidated financial statements and certain financial information contained of the Company included in each or incorporated by reference into the Offering Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" not more than ” within three business days prior of the date of such letter. References to the Closing DateOffering Memorandum and the Final Memorandum in this paragraph (c) with respect to either letter referred to above shall include any amendment or supplement thereto at the date of such letter.
(gd) (i) None of the Company nor any of its Subsidiaries, shall have sustained, since the date of the latest audited historical consolidated financial statements included or incorporated by reference in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), any loss or interference with their respective businesses or properties from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree (whether domestic or foreign) otherwise than as set forth in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto); and (ii) since the respective dates as of which information is given in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been any change in the capital stock or other ownership interests or long-term debt of the Company and its Subsidiaries, considered as one enterprise, or any change in or effect on or any development having a prospective change in or effect on the business, operations, properties, assets, liabilities, earnings, financial condition, results of operations or management of the Company and its Subsidiaries, considered as one enterprise, whether or not in the ordinary course of business, otherwise than as set forth in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the terms and in the manner described in the Offering Memorandum and the Final Memorandum (exclusive of any amendment or supplement thereto).
(e) The Initial Purchasers shall have received on each of the date hereof and certificates dated the Closing Date a letterand in form and substance reasonably satisfactory to the Initial Purchasers, dated of (i) the date hereof or Chief Executive Officer and the Chief Financial Officer of the Company and (ii) each Guarantor: as to the accuracy of the representations and warranties of the Company and the Guarantors in this Agreement at and as of the Closing Date; that the Company and or the applicable Guarantor(s), as the case may be, in form have performed all covenants and substance satisfactory agreements and satisfied all conditions on its or their part to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Section 6(d) (in the case of the certificate from the Company’s officers only).
(f) The Notes shall have received initial ratings by Standard & Poor’s and Moody’s, and, subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Company’s other debt securities by any “nationally recognized statistical rating agency”, as that term is defined by the Commission for purposes of Section 3(a)(62) under the Exchange Act, and no such organization shall have publicly announced that it has under surveillance or review its ratings of the Notes or any of the Company’s other debt securities or any notice or public announcement given of any intended or potential decrease in any such rating or that any such securities rating agency has under surveillance or review, with possible negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through the Common Depositary, Euroclear and Clearstream.
(h) The On or before the Closing Date, the Initial Purchasers and Counsel for the Initial Purchasers shall have received on each of such further certificates, documents or other information as they may have reasonably requested from the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing DateCompany.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Belden Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, prospects or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum as of the date of this Agreement provided to the prospective purchasers of the Securities that, in your the Representative’s judgment, is material and adverse and that makes it, in your the Representative’s judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate certificates from each of the Company and the Guarantorseach Guarantor, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, officer of each of the Company and the Subsidiary Guarantors such Guarantor, as applicable, to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors or such Guarantor contained in this Agreement were true and correct as of the Time of Sale and are true and correct as of the Closing Date and that each of the Company and the Guarantors or such Guarantor has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx Xxxxxx LLP, Canadian outside counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of XxxxXxxxxx, Weiss, Rifkind, Xxxxxxx Xxxxx & Xxxxxxxx Bockius LLP, U.S. outside regulatory counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman Xxxxxx, Xxxxxx & Sterling LLPXxxxxx LLC, U.S. outside Pennsylvania regulatory counsel for the Initial PurchasersCompany, Consolidated Communications of Pennsylvania, LLC and Consolidated Communications Enterprise Services Inc., dated the Closing Date, to the effect set forth in Exhibit C.C. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(f) The Initial Purchasers shall have received on the Closing Date an opinion of Naman, Howell, Xxxxx & Xxx, PLLC, outside counsel for Consolidated Communications of Texas Company, Consolidated Communications of Fort Bend Company and Consolidated Communications Services Company, dated the Closing Date, to the effect set forth in Exhibit D. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(g) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxxxx, White & Xxxxxx LLP, outside California regulatory counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit E. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and shall so state therein.
(h) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, counsel for the Initial Purchasers, dated the Closing Date.
(i) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or and the Closing Date, as the case may berespectively, in form and substance satisfactory to the Initial Purchasers, from KPMG, Ernst & Young LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the Parent’s financial statements and certain financial information of Parent contained or incorporated by reference in each the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" not ” no more than three business days prior to the Closing Date.
(gj) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or and the Closing Date, as the case may berespectively, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche Xxxx Xxxxx LLP, independent public accountants for Storm Energy Ltd ("Storm") accountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the Enventis’ financial statements and certain financial information of Enventis contained or incorporated by reference in each the Time of Sale Memorandum and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "“cut-off date" not ” no more than three business days prior to the Closing Date.
(hk) The Company, each Guarantor and the Trustee shall have executed and delivered the Third Supplemental Indenture, and the Initial Purchasers shall have received a copy thereof.
(l) The Company and each Guarantor shall have executed and delivered a Registration Rights Agreement in form and substance reasonably satisfactory to the Representative, including all of the provisions described in the Time of Sale Memorandum and such other provisions as are customary for registration rights agreements in similar transactions.
(m) The Company shall have taken all action required to be taken by it for the Securities to be eligible for clearance and settlement through DTC, it being understood that the Initial Purchasers shall obtain relevant CUSIP numbers for the Notes.
(n) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a lettercertificates, dated the date hereof or the Closing Date, executed by the Secretary of the Company and each Guarantor, certifying such customary matters as the case Initial Purchasers may be, in form and substance satisfactory to the reasonably request.
(o) The Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered Purchasers shall have received on the Closing Date shall use certificates evidencing (i) the existence or good standing of the Company and each Guarantor issued by the Secretary of State (or applicable office) of the jurisdiction in which the Company or such Guarantor is organized as of a "cut-off date" not more than three date within five business days prior to the Time of Sale and (ii) the qualification of the Company and each Guarantor as a foreign corporation in good standing issued by the Secretary of State (or applicable office) of each of the jurisdictions in which the Company or such Guarantor operates as of a date within five business days prior to the Time of Sale, in each case with an electronic mail bring down on the Closing Date.
(ip) Prior On or prior to the Closing Date, (i) the Company and the Trust Guarantors shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory furnished to the Initial Purchaser Purchasers such further certificates and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to documents as the Initial PurchaserPurchasers may reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Consolidated Communications Holdings, Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers Purchaser to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes used under Section 15E of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business business, prospects or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum as of the date of this Agreement provided to the prospective purchasers of the Securities that, in your the Initial Purchaser’s judgment, is material and adverse and that makes it, in your the Initial Purchaser’s judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The Initial Purchasers Purchaser shall have received on the Closing Date a certificate certificates from each of the Issuer, the Company and the Guarantorseach Guarantor, dated the Closing Date and signed by an executive officerofficer of the Issuer, trustee or managing partnerthe Company and such Guarantor, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Issuer, the Company and the Guarantors or such Guarantor contained in this Agreement are true and correct as of the Closing Date and that each of the Issuer, the Company and the Guarantors or such Guarantor has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx Xxxxxx LLP, Canadian outside counsel for the Issuer, the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers Purchaser at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx XxXxxxxxx LLP, U.S. outside counsel for the Issuer, the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers Purchaser at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers Purchaser shall have received on the Closing Date an opinion of Thomas, Long, Xxxxxx & Xxxxxxx, outside counsel for the Issuer, the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit C. Such opinion shall be rendered to the Initial Purchaser at the request of the Company and shall so state therein.
(f) The Initial Purchaser shall have received on the Closing Date an opinion of Naman, Howell, Xxxxx & Xxx, PLLC, outside counsel for Consolidated Communications of Texas Company, Consolidated Communications of Fort Bend Company and Consolidated Communications Services Company, dated the Closing Date, to the effect set forth in Exhibit D. Such opinion shall be rendered to the Initial Purchaser at the request of the Company and shall so state therein.
(g) The Initial Purchaser shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial PurchasersPurchaser, dated the Closing Date, to the effect set forth in Exhibit C..
(fh) The Initial Purchasers Purchaser shall have received on each of the date hereof and the Closing Date a letterletters, dated the date hereof or and the Closing Date, as the case may berespectively, in form and substance satisfactory to the Initial PurchasersPurchaser, from KPMG, Ernst & Young LLP, independent public accountants for the Trust and its subsidiariesaccountants, containing statements and information of the type ordinarily included in accountants' "’ “comfort letters" ” to underwriters with respect to the each of Parent’s and SureWest’s financial statements and certain financial information or each of Parent and SureWest contained in each the Time of Sale Memorandum and the Final Memorandum; provided that the letter letters delivered on the Closing Date shall use a "“cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not ” no more than three business days prior to the Closing Date.
(i) Prior Finance Co. and the Trustee shall have executed and delivered the Indenture, and the Initial Purchaser shall have received a copy thereof.
(j) Finance Co. shall have executed and delivered a Registration Rights Agreement in form and substance reasonably satisfactory to Xxxxxx Xxxxxxx & Co. LLC, including all of the provisions described in the Time of Sale Memorandum and such other provisions as are customary for registration rights agreements in similar transactions.
(k) (i) Finance Co., the Trustee and the Escrow Agent shall have executed the Escrow Agreement and the Initial Purchaser shall have received a copy thereof, executed by the Issuer, the Trustee and the Escrow Agent and such agreement shall be in full force and effect on and as of the Closing Date; (ii) the Escrow Property equal to the Escrow Redemption Amount shall have been deposited with the Escrow Agent solely in accordance with the Escrow Agreement; and (iii) the Trustee shall have a first-priority security interest in the Escrow Account and the Escrow Property.
(l) The Issuer shall have taken all action required to be taken by it for the Securities to be eligible for clearance and settlement through DTC, it being understood that the Initial Purchaser shall obtain relevant CUSIP numbers for the Notes.
(m) The Initial Purchaser shall have received on the Closing Date certificates, dated the Closing Date, executed by the Secretary of the Issuer, the Company and each Guarantor, certifying such customary matters as the Initial Purchaser may reasonably request.
(n) The Initial Purchaser shall have received on the Closing Date certificates evidencing (i) the existence or good standing of the Issuer, the Company and each Guarantor issued by the Secretary of State (or applicable office) of the jurisdiction in which the Issuer, the Company or such Guarantor is organized as of a date within five business days prior to the Time of Sale and (ii) the qualification by the Issuer, the Company and each Guarantor as a foreign corporation in good standing issued by the Secretary of State (or applicable office) of each of the jurisdictions in which the Issuer, the Company or such Guarantor operates as of a date within five business days prior to the Time of Sale, in each case with an electronic mail bring down on the Closing Date.
(o) On or prior to the Closing Date, (i) the Issuer, the Company and the Trust Guarantors shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory furnished to the Initial Purchaser such further certificates and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to documents as the Initial PurchaserPurchaser may reasonably request.
Appears in 1 contract
Samples: Purchase Agreement (Consolidated Communications Holdings, Inc.)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers to purchase and pay for the Securities as provided herein on the Closing Date are subject to the satisfaction or waiver, as determined by Mxxxxx Sxxxxxx in its sole discretion of the following conditionsconditions precedent on or prior to the Closing Date:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors its subsidiaries or any of the securities of the Company or any of the Guarantors its subsidiaries or in the rating outlook for the Company or the Guarantors any of its subsidiaries by any "“nationally recognized statistical rating organization," ” as such term is defined for purposes in Section 3(a)(62) of Rule 436(g)(2) under the Securities Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust Company and its subsidiaries, taken as a whole, from that set forth in the Final Time of Sale Memorandum provided to the prospective purchasers of the Securities that, in your Mxxxxx Xxxxxxx’x judgment, is material and adverse and that makes it, in your Mxxxxx Xxxxxxx’x judgment, impracticable or inadvisable to market proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Final Time of Sale Memorandum.
(b) The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Time of Sale and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company’s officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company shall have performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(c) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantorscertificate, dated the Closing Date and signed by an executive officer, trustee the Chief Executive Officer or managing partner, as applicable, of each President of the Company and the Subsidiary Guarantors Chief Financial Officer or Chief Accounting Officer of the Company to the effect set forth in Section 5(a)(i) 5(a), and further to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement were true and correct as of the Time of Sale and are true and correct as of the Closing Date and Date; that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing ; and delivering such certificates may rely upon that the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request sale of the Company and the Guarantors and shall so state thereinSecurities has not been enjoined (temporarily or permanently).
(d) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of XxxxWxxxxx Xxxxxxx Xxxxxxxx & Rxxxxx, WeissP.C., Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. outside counsel for the Company and the GuarantorsCompany, dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit B. Mxxxxx Sxxxxxx. Such opinion and letter shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion and negative assurance letter of Shearman Sxxxxxx Xxxxxxx & Sterling Bxxxxxxx LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, with respect to such matters as may be reasonably requested by the effect set forth in Exhibit C.Initial Purchasers.
(f) The On the date hereof, the Initial Purchasers shall have received on each of from Deloitte & Touche LLP, the date hereof and independent registered public accounting firm for the Closing Date Company, a “comfort letter, ” dated the date hereof or addressed to the Closing Date, as the case may beInitial Purchasers, in form and substance satisfactory to Mxxxxx Sxxxxxx, covering the financial information in the Time of Sale Memorandum and other customary matters. In addition, on the Closing Date, the Initial Purchasers shall have received from such accountants a “bring-down comfort letter” dated the Closing Date addressed to the Initial Purchasers, from KPMGin form and substance satisfactory to Mxxxxx Sxxxxxx, LLP, independent public accountants for in the Trust and its subsidiaries, containing statements and information form of the type ordinarily included in accountants' "“comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter letter” delivered on the Closing Date date hereof, except that (i) it shall use cover the financial information in the Final Memorandum and any amendment or supplement thereto and (ii) procedures shall be brought down to a "cut-off date" not date no more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received received, on each of the date hereof and the Closing Date Date, a lettercertificate signed by the Chief Financial Officer of the Company, dated respectively as of the date hereof or as of the Closing Date, as substantially in the case may beform agreed with Mxxxxx Sxxxxxx.
(h) The Company shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd and the Representatives shall have received executed copies thereof.
("Storm"i) containing statements and information The sale of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered Securities shall not be enjoined (temporarily or permanently) on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(hj) The On or before the Closing Date, the Initial Purchasers and counsel for the Initial Purchasers shall have received on each such information, documents, letters and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the date hereof Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and the Closing Date a letterwarranties, dated the date hereof or the Closing Datesatisfaction of any of the conditions or agreements, herein contained. If any condition specified in this Section 5 is not satisfied when and as the case required to be satisfied, this Agreement may be, in form and substance satisfactory be terminated by Mxxxxx Sxxxxxx by notice to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered Company at any time on the Closing Date shall use a "cut-off date" not more than three business days or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Sections 6(g), 8 and 11 hereof shall at all times be effective and shall survive such termination.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
Samples: Purchase Agreement (Roblox Corp)
Conditions to the Initial Purchasers’ Obligations. The several obligations of the Initial Purchasers hereunder to purchase and pay for the Firm Securities on the Closing Date are subject to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) Subsequent the representations and warranties of the Company contained herein are true and correct on and as of the Closing Date as if made on and as of the Closing Date and the Company shall have complied with all agreements and all conditions on its part to the execution and delivery of this Agreement and be performed or satisfied hereunder at or prior to the Closing Date:;
(ib) since the respective dates as of which information is given in the Time of Sale Information and the Final Memorandum (excluding any amendment or supplement thereto after the date hereof), there shall not have occurred been (i) any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible material change that does not indicate the direction of the possible change, in the rating accorded capital stock or long-term debt (other than the Company or any changes in floor plan borrowings in the ordinary course of the Guarantors or any of the securities business) of the Company or any of the Guarantors subsidiaries or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, its financial condition, financial management or otherwise, or in the earnings, business or results of operations of the Trust Company and its subsidiaries, taken as a whole, otherwise than as set forth in the Time of Sale Information and the Final Memorandum; or (ii) any suspension or material limitation of trading in the capital stock of the Company on the New York Stock Exchange, the effect of which in the your judgment makes it impracticable or inadvisable to proceed with the offering or the delivery of the Securities on the Closing Date on the terms and in the manner contemplated in the Time of Sale Information and the Final Memorandum;
(c) the Initial Purchasers shall have received on and as of the Closing Date a certificate of an executive officer of the Company, with specific knowledge about the Company’s financial matters, satisfactory to you to the effect set forth in Section 6(a) and to the further effect that there has not occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers Time of the Securities that, in your judgment, is material Sale Information and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.;
(bd) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx Xxxxxx & Xxxxxx LLPL.L.P., Canadian outside counsel for the Company and Company, shall have furnished to the GuarantorsInitial Purchasers their written opinion, dated the Closing Date, in form and substance satisfactory to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Dateyou, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Time of Sale Information and the Final Memorandum;
(ii) this Agreement has been duly authorized, executed and delivered by the Company;
(iii) the Company’s authorized capital stock is as set forth in Exhibit B. Such opinion shall the Time of Sale Information and the Final Memorandum;
(iv) The Securities have been duly authorized, executed, issued and delivered by the Company and, assuming the due authentication of the Securities by the Trustee, constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture, enforceable against it in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization, law relating to fraudulent conveyance, moratorium and laws of general applicability relating to or affecting creditors’ rights and general equity principles and except as set forth in the Final Memorandum;
(v) the Underlying Securities reserved for issuance upon conversion of the Securities have been duly authorized and reserved and, when issued upon conversion of the Securities in accordance with the terms of the Securities, will be rendered validly issued, fully paid and non-assessable and the issuance of the Underlying Securities will not be subject to any preemptive or similar rights under the Company’s Restated Certificate of Incorporation or Bylaws or under the Delaware General Corporation Law;
(vi) the Indenture has been duly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery of the other parties thereto, constitutes a valid and legally binding instrument of the Company, enforceable against it in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, laws relating to fraudulent conveyance and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(vii) no consent, approval, authorization, order, registration or qualification of or with any such Texas or federal court or governmental agency or body described in subparagraph (c) of paragraph (xii) below is required for the issue and sale of the Securities, the issuance by the Company of the Underlying Securities upon conversion of the Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Securities by the Initial Purchasers at and except where failure to obtain such consent, approval, authorization, order, registration or qualification would not have a Material Adverse Effect (such counsel need express no opinion in this subparagraph (vii) as to compliance with the request registration provisions of the Securities Act in relation to the Securities);
(viii) no registration of the Securities or the Underlying Securities under the Securities Act, and no qualification of an indenture under the TIA with respect thereto, is required for the offer, sale and initial resale of the Securities by the Initial Purchasers in the manner contemplated by this Agreement, the Time of Sale Information and the Final Memorandum;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Time of Sale Information and the Final Memorandum, will not be required to register as an “investment company” as defined in the Investment Company Act of 1940, as amended;
(x) when the Securities are issued and delivered pursuant to this Agreement, none of the Securities will be of the same class (within the meaning of Rule 144A under the Securities Act) as securities of the Company that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system;
(xi) the statements in the Time of Sale Information and the Guarantors Final Memorandum under the captions “Description of notes”, “Description of capital stock” and shall so state “Certain United States federal income tax considerations”, insofar as they constitute summaries of the legal matters, documents or proceedings referred to therein., fairly present, in all material respects, the information called for with respect to such legal matters, documents or proceedings;
(exii) The Initial Purchasers shall have received the issue and sale of the Securities, the issuance by the Company of the Underlying Securities upon conversion of the Securities, and the compliance by the Company with all of the provisions of the Securities, Indenture and this Agreement with respect to the Securities and the consummation of the transactions contemplated herein will not (a) conflict with or result in a breach or violation of any document or agreement filed as an exhibit to the Company’s annual report on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel Form 10-K for the Initial Purchasersyear ended December 31, dated 2009, (b) result in any violation of the Closing Dateprovisions of the Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company or (c) result in a violation of any Texas or federal statute or any order, rule or regulation known to such counsel of any Texas or federal court or governmental agency or body having jurisdiction over the effect set forth Company or any of its subsidiaries or any of their properties (except that such counsel need express no opinion with respect to compliance with the anti-fraud provisions of Federal or state securities laws or Blue Sky laws with respect to this subparagraph (xii)), except in Exhibit C.the case of clauses (a) and (c) for such breaches or violations that could not reasonably be expected to have a Material Adverse Effect or that could violate public policy relating thereto;
(fxiii) The Initial Purchasers shall have received on each document incorporated by reference in the Time of the date hereof Sale Information and the Closing Date a letterFinal Memorandum (other than the financial statements, dated including the date hereof notes thereto, and financial statement schedules and other financial and accounting information included therein, as to which such counsel need express no opinion), when they became effective or were filed with the Closing DateCommission, as the case may be, appear on their face to be appropriately responsive in all material respects to the requirements of the Exchange Act; and
(xiv) no facts have come to such counsel’s attention that have led such counsel to believe that (except for the financial statements and related schedules, including the notes and schedules thereto and the auditor’s report thereon or any other financial or accounting data included in, or excluded from, the Time of Sale Information or the Final Memorandum as to which such counsel need express no belief) (x) the Time of Sale Information, as of the Time of Sale, contained an untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (y) the Final Memorandum, as of its date or as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(e) Corporate Counsel of the Company, shall have furnished to the Initial Purchasers his written opinion, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants to the effect that:
(i) the Company has been duly qualified as a foreign corporation for the Trust transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, other than where the failure to be so qualified or in good standing would not have a Material Adverse Effect;
(ii) the Company has the corporate power and authority to execute and deliver each of the Transaction Documents and to perform its obligations thereunder; and all action required to be taken for the due and proper authorization, execution and delivery by the Company of each of the Transaction Documents and the consummation by the Company of the transactions contemplated thereby has been duly and validly taken;
(iii) the shares of Common Stock outstanding on the Closing Date have been duly authorized and are validly issued, fully paid and non-assessable;
(iv) each subsidiary of the Company that is organized in the state of Delaware or Texas has been duly incorporated or formed and is validly existing as a corporation, limited liability company or limited partnership in good standing under the laws of the state of its incorporation or formation with power and authority (corporate and other) to own its properties and conduct its business as described in the Time of Sale Information and the Final Memorandum;
(v) to such counsel’s knowledge, other than as disclosed in the Time of Sale Information and the Final Memorandum, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is or may be a party or to which any property of the Company or its subsidiaries is or may be the subject which, if determined adversely to the Company or such subsidiaries, could individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
(f) on the date of the issuance of the Final Memorandum and also on the Closing Date, Ernst & Young LLP shall have furnished to the Initial Purchasers letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to you, containing statements and information of the type ordinarily customarily included in accountants' "accountants “comfort letters" ” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each the Time of Sale Information and the Final Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.;
(g) The the Initial Purchasers shall have received on each and as of the date hereof and the Closing Date a letteran opinion from each of Cravath, dated Swaine & Xxxxx LLP and Xxxxx Xxxx & Xxxxxxxx LLP, counsel to the date hereof or the Closing Date, as the case may beInitial Purchasers, in form and substance reasonably satisfactory to you;
(h) the “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and the officers and directors of the Company identified on Exhibit A-1 relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date;
(i) an application for the listing of the Underlying Securities shall have been submitted to the New York Stock Exchange; and
(j) on or prior to the Closing Date the Company shall have furnished to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements Purchasers such further certificates and information documents as you or your counsel shall reasonably request. The obligations of the type ordinarily included in accountants' "comfort letters" Initial Purchasers to underwriters purchase Additional Securities hereunder are subject to the delivery to you on the Option Closing Date of such documents as you may reasonably request including with respect to the financial statements good standing of the Company, the due authorization, execution, authentication and certain financial information contained in each Memorandum; provided that issuance of the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior Additional Securities and other matters related to the Closing Date.
(h) The Initial Purchasers shall have received on each execution, authentication and issuance of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing DateAdditional Securities.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Appears in 1 contract
