Conditions to the Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase and pay for the 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) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Ledgewood, P.C., counsel for the Issuers, in form and substance satisfactory to Xxxxxxx Xxxxx, to the effect set forth in Exhibit A hereto. (b) The Initial Purchasers shall have received such other opinions of counsel, dated the Closing Date, of covering regulatory and local matters as Xxxxxxx Xxxxx shall reasonably request. (c) The Initial Purchaser shall have received an opinion, dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx llp, Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as Xxxxxxx Xxxxx 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 Section 6(a). (d) 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 Xxxxxxx Xxxxx and Counsel for the Initial Purchasers, from Xxxxx Xxxxxxxx LLP, independent public 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 the Offering Memorandum; provided, however, that the letters referenced in this clause (d) 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 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 Xxxxxxx Xxxxx, 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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx, 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 general partner in this Agreement at and as of the Closing Date; that the general partner 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. (h) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice 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 Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice President and the Chief Financial Officer of each Guarantor, or the General Partner of such Guarantor, as the case may be, as to the accuracy of the representations and warranties of such Guarantor in this Agreement at and as of the Closing 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. (j) 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. 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 Issuers.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the 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) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Ledgewood, P.C.Xxxxx Lord LLP, counsel for the Issuers, in form and substance satisfactory to Xxxxxxx Xxxxxthe Initial Purchasers, to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received such other opinions of counsel, dated the Closing Date, of covering regulatory and local matters as Xxxxxxx Xxxxx shall reasonably request.
(c) The Initial Purchaser shall have received an opinion, dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx llp, the Counsel for the Initial Purchasers, Purchasers with respect to the issuance and sale of the Notes and such other related matters as Xxxxxxx Xxxxx the Initial Purchasers 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 Section 6(a).
(dc) 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 Xxxxxxx Xxxxx the Initial Purchasers and Counsel for the Initial Purchasers, from Xxxxx Xxxxxxxx KPMG LLP, independent public 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 the Offering Memorandum; provided, however, provided that the letters referenced in this clause (d) letter shall use a “cut-off date” within three days of the date of such letterletter and that their procedures, shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (dc) with respect to any either letter referred to above shall include any amendment or supplement thereto at the date of any such letter.
(i) None of the Issuers Partnership nor any of their subsidiaries nor any other Guarantorits 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 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 each 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 any Issuer the Partnership and its subsidiaries or any other Guarantorsubsidiaries, 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 any Issuer the Partnership and its subsidiaries or any other Guarantorsubsidiaries, 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 Xxxxxxx Xxxxxthe 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).
(fe) None of the information set forth in the sections of the Offering Memorandum, or documents incorporated by reference therein, Memorandum entitled “Use of Proceeds,” “Capitalization,” “Executive Compensation,” “Certain Relationships and Related Transactions” and “Description of Other Indebtedness” shall have materially 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 Xxxxxxx Xxxxx make 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.
(gf) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxxthe Initial Purchasers, of the Chairman of the Managing Board, the President or a Vice President Chief Executive Officer and the Chief Financial Officer of the General Partner as to the accuracy of the representations and warranties of the general partner Issuers and the Guarantors in this Agreement at and as of the Closing Date; that the general partner has Issuers and the Guarantors 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(e6(d), (fe) and (j) hereofg).
(h) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice 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 Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice President and the Chief Financial Officer of each Guarantor, or the General Partner of such Guarantor, as the case may be, as to the accuracy of the representations and warranties of such Guarantor in this Agreement at and as of the Closing 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.
(jg) Subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Partnership’s 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 Partnership’s 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.
(kh) The Notes shall be eligible for clearance and settlement through the Depository Trust Company.
(li) On the Closing Date, the The Initial Purchasers shall have received a counterpart of the Indenture Registration Rights Agreement that shall have been executed and delivered by a duly authorized officers of the Issuers and the Guarantors and the Trustee and such agreement shall be in full force and effect.Guarantors;
(mj) 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. 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 IssuersIssuers and the Guarantors.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the several Initial Purchasers to purchase and pay for the 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’ 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) The Initial Purchasers shall have received an opinion, dated the Closing Date, of Ledgewood, P.C.Dechert LLP, counsel for the Issuers, in form and substance satisfactory to Xxxxxxx Xxxxxthe Initial Purchasers, to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received such other opinions of counselopinions, dated the Closing Date, of covering regulatory counsel for the Issuers and local matters as Xxxxxxx Xxxxx shall reasonably requestGuarantors in each jurisdiction set forth on Schedule IV hereto, in form and substance satisfactory to the Initial Purchasers.
(c) The Initial Purchaser Purchasers shall have received (i) an opinion, dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx llpLLP, Counsel for the Initial PurchasersPurchasers and (ii) an opinion, dated the Closing Date of Goodmans LLP, in each case, with respect to the issuance and sale of the Notes and such other related matters as Xxxxxxx Xxxxx the Initial Purchasers 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 Section 6(a).
(d) 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 Xxxxxxx Xxxxx the Initial Purchasers and Counsel for the Initial Purchasers, from Xxxxx Xxxxxxxx Ernst & Young LLP, independent public 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 the Offering Memorandum; provided, however, provided that the letters referenced in this clause (d) letter shall use a “cut-off date” within three days of the date of such letterletter and that their procedures, shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (d) with respect to any either letter referred to above shall include any amendment or supplement thereto at the date of any such letter.
(i) None of the Issuers Parent nor any of their its subsidiaries nor any other Guarantor, 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 loss or interference with their respective businesses or properties arising from fire, explosion, flood, accident or other calamity, whether or not covered by insurance, or from any labor dispute strike 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 the Preliminary Memorandum and the Offering Memorandum, there shall not have been any change in the capital stock or long-term debt of any Issuer Parent and its subsidiaries (except as described in the Preliminary Offering Memorandum and the Offering Memorandum (exclusive of any amendment or any other Guarantorsupplement thereto)), 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 Parent and its subsidiaries or any other Guarantorsubsidiaries, 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 Xxxxxxx Xxxxxthe 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, 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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxxthe Initial Purchasers, of the Chairman of the Managing Board, the President or a Vice President Chief Executive Officer and the Chief Financial Officer of the General Partner Parent as to the accuracy of the representations and warranties of the general partner Issuers and the Guarantors in this Agreement at and as of the Closing Date; that the general partner has Issuers and the Guarantors shall have performed in all material respects all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Sections 6(e), (fg) and (j) hereofh).
(h) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice 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 Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice President and the Chief Financial Officer of each Guarantor, or the General Partner of such Guarantor, as the case may be, as to the accuracy of the representations and warranties of such Guarantor in this Agreement at and as of the Closing 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.
(jg) Subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the Partnership’s 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 Notes or any of the Partnership’s 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.
(kh) Subsequent to the date hereof, there shall not have been any decrease in the rating of Parent or any of its subsidiaries 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 Parent or any of its subsidiaries 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 Parent or any of the subsidiaries.
(i) The Notes shall be eligible for clearance and settlement through the Depository Trust Company.
(lj) On Except as otherwise provided for in the Security Agreement, the Indenture or the other documents entered into pursuant to the Transactions, the Initial Purchasers shall have received the Security Agreement and the Intercreditor Agreement 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, any applicable control agreements, stock certificates accompanied by instruments of transfer and stock powers undated and endorsed in blank, Uniform Commercial Code and Personal Property Security Act financing statements in appropriate form for filing and filings with the United States Patent and Trademark Office and the Canadian Intellectual Property Office in appropriate form for filing; each such document executed by the Issuers and/or 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 Initial Purchasers shall also have received (i) certified copies of Uniform Commercial Code, Personal Property Security Act, United States Patent and Trademark Office, Canadian Intellectual Property Office and United States Copyright Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches, each of a recent date, listing all effective financing statements, lien notices or comparable documents that name the Issuers or any Guarantor as debtor and that are filed in those state jurisdictions in which the Issuers or any Guarantor is organized and such other searches that are required by Schedule III hereto or that the Initial Purchasers reasonably 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 (ii) acceptable evidence of payment or arrangements for payment by the Issuers and the Guarantors of all applicable recording taxes, fees, charges, costs and expenses required for the recording of the Security Documents.
(k) At the Closing Date, the Initial Purchasers shall have received policies or certificates of insurance covering the Indenture executed by property and assets of the Issuers and the Guarantors Guarantors, which policies or certificates shall be in form and substance reasonably acceptable to the Initial Purchasers and reflect the Collateral Agent for its benefit and the Trustee benefit of the Collateral Agent and such agreement the holders of the Notes, as additional insured and loss payee and shall otherwise bear endorsements of the character reasonably acceptable to the Initial Purchasers.
(l) At the Closing Date, the Credit Agreement Amendments shall have been entered into by the parties thereto in form and substance reasonably satisfactory to the Initial Purchasers, and the ABL Credit Agreement and the Term Loan Credit Agreement, each as amended, shall be in full force and effect.
(m) On the Closing Date, the The Initial Purchasers shall have received a counterpart of the Registration Rights Agreement that shall have been executed and delivered by a duly authorized officers of the Issuers and the Guarantors and such agreement shall be in full force and effect. Guarantors.
(n) 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 IssuersIssuers and the Guarantors.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the Initial Purchasers Purchaser to purchase and pay for the Notes shall be subject to the accuracy of the representations and warranties of the Issuers 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 Issuers’ Company’s officers made pursuant to the provisions hereof, to the performance by the Issuers Company of their its covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers Purchaser shall have received an opinion, dated the Closing Date, of Ledgewood, P.C.Mxxxxxxx & Fxxxxxxx LLP, counsel for the IssuersCompany, and Santoro, Driggs, Walch, Kearney, Jxxxxxx & Txxxxxxx, Nevada counsel to the Company, in form and substance satisfactory to Xxxxxxx Xxxxxthe Initial Purchaser, to the effect set forth in Exhibit A A-1 and A-2 hereto.
(b) The Initial Purchasers shall have received such other opinions of counsel, dated the Closing Date, of covering regulatory and local matters as Xxxxxxx Xxxxx shall reasonably request.
(c) The Initial Purchaser shall have received an opinion, dated the Closing Date, of Xxxxxx Cxxxxx Xxxxxx & Xxxxxxx Rxxxxxx llp, Counsel for the Initial PurchasersPurchaser, with respect to the issuance and sale of the Notes and such other related matters as Xxxxxxx Xxxxx the Initial Purchaser may reasonably require, and the Issuers 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 Ledgewood referred to in Section 6(a).
(dc) 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 Xxxxxxx Xxxxx the Initial Purchaser and Counsel for the Initial PurchasersPurchaser, from Xxxxx Xxxxxxxx Deloitte & Touche LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the consolidated historical financial statements and certain financial information contained in the Offering Memorandum; provided, however, provided that the letters referenced in this clause (d) letter shall use a “cut-off date” within three business days of the date of such letterletter and that their procedures, shall extend to financial information in the Final Memorandum not contained in the Preliminary Memorandum. References to the Offering Memorandum in this paragraph (dc) with respect to any either letter referred to above shall include any amendment or supplement thereto at the date of any such letter.
(i) None of the Issuers Company nor any of their subsidiaries nor any other Guarantorits subsidiaries, shall have sustained, since the date of the latest audited consolidated historical 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 the Company and its subsidiaries or any other Guarantorsubsidiaries, 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 the Company and its subsidiaries or any other Guarantorsubsidiaries, 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 Xxxxxxx Xxxxxthe 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).
(fe) None of the information set forth in the sections of the Offering Memorandum, or documents incorporated by reference therein, Memorandum entitled “Use of Proceeds,” “Capitalization,” “Executive Compensation,” “Certain Relationships and Related Transactions” and “Description of Other IndebtednessOffering Memorandum Summary—Recent Developments” shall have changed, nor shall there have been any change in the information with respect to the directors and officers of the Issuers, Company 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 Xxxxxxx Xxxxx make the Initial Purchaser 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.
(gf) The Initial Purchasers Purchaser shall have received a certificate, dated the Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxxthe Initial Purchaser, of the Chairman of the Managing Board, the President or a Vice President Chief Executive Officer and the Chief Financial Officer of the General Partner Company as to the accuracy of the representations and warranties of the general partner Company in this Agreement at and as of the Closing Date; that the general partner Company has performed all covenants and agreements and satisfied all conditions on their its part to be performed or satisfied at or prior to the Closing Date; and as to the matters set forth in Sections 6(e), (f6(d) and (j) hereofe).
(hg) The Initial Purchasers Notes shall have received a certificateinitial ratings by Standard & Poor’s and Mxxxx’x, dated the Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxxand, of the Chairman of the Board, the President or a Vice 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 Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice President and the Chief Financial Officer of each Guarantor, or the General Partner of such Guarantor, as the case may be, as to the accuracy of the representations and warranties of such Guarantor in this Agreement at and as of the Closing 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.
(j) Subsequent subsequent to the date hereof, there shall not have been any decrease in the rating of the Notes or any of the PartnershipCompany’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 PartnershipCompany’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.
(kh) The Notes shall have been designated for trading on PORTAL.
(i) The Notes shall be eligible for clearance and settlement through the Depository Trust Company.
(lj) 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. On or before the Closing Date, the Initial Purchasers Purchaser and Counsel for the Initial Purchasers Purchaser shall have received such further certificates, documents or other information as they may have reasonably requested from the IssuersCompany.
(k) The Company and the Guarantors shall have executed and delivered the documentation with respect to the Credit Facility and the Initial Purchaser shall have received copies thereof.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase and pay for the Notes shall be hereunder are subject to the accuracy accuracy, when made and on the Closing Date, 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 hereofCompany contained herein, to the performance by the Issuers Company of their covenants and agreements hereunder its respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The Initial Purchasers shall not have received an discovered and disclosed to the Company on or prior to the Closing Date that the Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of Shearman & Sterling, 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 in light of the circumstances in which they were made not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights Agreement, the Indenture, the Notes, the Memorandum and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all 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.
(c) Xxxxxx Xxxxxxxx LLP shall have furnished to the Initial Purchasers its written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated the Closing Date, of Ledgewood, P.C., counsel for the Issuers, in form and substance reasonably satisfactory to Xxxxxxx Xxxxxthe Initial Purchasers, to the effect set forth in Exhibit A hereto.
(b) The hereto and to such further effect as counsel to the Initial Purchasers shall have received such other opinions of counsel, dated the Closing Date, of covering regulatory and local matters as Xxxxxxx Xxxxx shall may reasonably request.
(c) The Initial Purchaser shall have received an opinion, dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx llp, Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as Xxxxxxx Xxxxx 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 Section 6(a).
(d) 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 Xxxxxxx Xxxxx and Counsel for the Initial Purchasers, from Xxxxx Xxxxxxxx LLP, independent public 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 the Offering Memorandum; provided, however, that the letters referenced in this clause (d) 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 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 Xxxxxxx Xxxxx, 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 Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx, 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 general partner in this Agreement at and as of the Closing Date; that the general partner 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.
(h) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice 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 Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice President and the Chief Financial Officer of each Guarantor, or the General Partner of such Guarantor, as the case may be, as to the accuracy of the representations and warranties of such Guarantor in this Agreement at and as of the Closing 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.
(j) 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. 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 Issuers.
Appears in 1 contract
Samples: Purchase Agreement (Primus Telecommunications Group Inc)
Conditions to the Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase and pay for the Notes Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Issuers in Section 1 hereof, in each case as of Company contained herein at the date hereof Execution Time and as of the Closing Date, as if made on and as of at the Closing Date, to the accuracy in all material respects of the statements of the Issuers’ officers Company made in any certificates pursuant to the provisions hereof, to the performance in all material respects by the Issuers Company of their covenants and agreements its obligations hereunder and to the following additional conditions:
(a) The Initial Purchasers Company shall have received an requested and caused Kirkxxxx & Xllix, counsel for the Company, to furnish to the Representatives its opinion, dated the Closing Date, of Ledgewood, P.C., counsel for Date and substantially in the Issuers, in form and substance satisfactory to Xxxxxxx Xxxxx, to the effect set forth in attached on Exhibit A hereto.B.
(b) The Initial Purchasers Company shall have received such other opinions requested and caused Gary X. Xxxxxxx, Xxce President and Deputy General Counsel of counselthe Company, to furnish to the Representatives his opinion, dated the Closing Date, of covering regulatory Date and local matters substantially in the form attached as Xxxxxxx Xxxxx shall reasonably request.Exhibit C.
(c) The Initial Purchaser Representatives shall have received an opinionfrom Mayex, Xxown & Platx, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx llp, Counsel for Date and addressed to the Initial PurchasersRepresentatives, with respect to the issuance and sale of the Notes Securities, the Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and such other related matters as Xxxxxxx Xxxxx the Representatives may reasonably require, and the Issuers Company shall have furnished to such counsel such documents as it may reasonably they request for the purpose of enabling it them 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 Section 6(a).
(d) The Initial Purchasers Company shall have received on each furnished to the Representatives a certificate of the date hereof Company, signed by (i) the President, any Executive Vice President or any Senior Vice President and (ii) the Closing Date a letterChief Financial Officer or the Treasurer, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to Xxxxxxx Xxxxx and Counsel for the Initial Purchasers, from Xxxxx Xxxxxxxx LLP, independent public 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 the Offering Memorandum; provided, however, effect that the letters referenced in this clause (d) shall use a “cut-off date” within three days of the date signers of such letter. References to certificate have carefully examined the Offering Memorandum in this paragraph (d) with respect to any letter referred to above shall include Final Memorandum, any amendment or supplement thereto at to the date of any such letter.Final Memorandum and this Purchase Agreement and that:
(i) None the representations and warranties of the Issuers nor any Company in this Purchase Agreement are true and correct in all material respects on and as of their subsidiaries nor any other Guarantorthe Closing Date with the same effect as if made on the Closing Date, shall have sustained, and the Company 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 at or prior to the Closing Date; and
(ii) since the date of the latest audited most recent 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 Final Memorandum, there shall not have has been no material adverse change, or any change development that would reasonably be likely to result in a material adverse change, in or affecting the capital stock general affairs, management, financial position, stockholders' equity or long-term debt results of any Issuer operations of the Company and its subsidiaries or any other Guarantor, or any change in or effect on or any development having taken as 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 Guarantorwhole, whether or not in the ordinary course of business, otherwise than except as set forth in each such Memorandum (exclusive of any amendment or supplement thereto), contemplated by the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of Xxxxxxx Xxxxx, 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)Final Memorandum.
(fe) None At the Execution Time and at the Closing Date, the Company shall have requested and caused each of the information set forth in the sections of the Offering Memorandum, or documents Company's independent accountants and Keebxxx'x xxxependent accountants who have certified financial statements and financial statement schedules 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 Final Memorandum to furnish to the directors and officers Initial Purchasers letters, dated respectively as of the Issuers, if the effect of any such change, individually or in the aggregate, in the sole judgment of Xxxxxxx Xxxxx make it impracticable or inadvisable to proceed with the offering or the delivery date hereof and as of the Notes on the terms and in the manner described in the Offering MemorandumClosing Date, 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 Xxxxxxx Xxxxxthe Representatives, 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 general partner type described in this Agreement at and as of the Closing Date; that the general partner has performed all covenants and agreements and satisfied all conditions AICPA Statement 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) hereofAuditing Standards No. 72.
(h) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice 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 Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice President and the Chief Financial Officer of each Guarantor, or the General Partner of such Guarantor, as the case may be, as to the accuracy of the representations and warranties of such Guarantor in this Agreement at and as of the Closing 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.
(j) Subsequent to the date hereofExecution Time or, if earlier, the dates as of which information is given in the Final Memorandum, there shall has not have been any decrease change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and the Subsidiaries, taken as a whole, whether or not arising from transactions in the rating ordinary course of business, except as set forth or contemplated in the Final Memorandum, the effect of which is, in the judgment 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 ActRepresentatives, 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. 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 Issuers.so material
Appears in 1 contract
Samples: Purchase Agreement (Kellogg Co)
Conditions to the Initial Purchasers’ Obligations. The obligations of the Initial Purchasers to purchase and pay for the Notes shall be hereunder are subject to the accuracy accuracy, when made and on the Closing Date, 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 hereofCompany contained herein, to the performance by the Issuers Company of their covenants and agreements hereunder its respective obligations hereunder, and to each of the following additional terms and conditions:
(a) The No Initial Purchaser shall have discovered and disclosed to the Company on or prior to the Closing Date that the 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) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Indenture, the Notes, the Memorandum, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all 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.
(c) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx shall have furnished to the Initial Purchasers shall have received an their written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated the Closing Date, of Ledgewood, P.C., counsel for the Issuers, in form and substance reasonably satisfactory to Xxxxxxx Xxxxxthe Initial Purchasers, to the effect set forth in Exhibit A hereto.
(b) The hereto and to such further effect as counsel to the Initial Purchasers shall have received such other opinions of counsel, dated the Closing Date, of covering regulatory and local matters as Xxxxxxx Xxxxx shall may reasonably request.
(c) The Initial Purchaser shall have received an opinion, dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx llp, Counsel for the Initial Purchasers, with respect to the issuance and sale of the Notes and such other related matters as Xxxxxxx Xxxxx 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 Section 6(a).
(d) The Initial Purchasers You 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 be, in form and substance satisfactory to Xxxxxxx Xxxxx and Counsel for the Initial Purchasersyou, from Xxxxx Xxxxxxxx KPMG LLP, independent public 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, including the financial information contained or incorporated by reference in the Offering Memorandum; providedMemorandum as identified by you, howeverincluding, without limitation, its written opinion to the effect that commencing with its taxable year ended December 31, 1996, the Company has been organized and operated in a manner that has enabled it to qualify as a REIT under Sections 856 through 860 of the Code, and that the letters referenced Company's proposed method of operation will enable it to continue to so qualify.
(e) The Company shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of the Chairman of the Board, President or a Vice President of the Company and the Treasurer or Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Company in this clause Section 1 are true and correct in all material respects as of the Closing Date and the Company has complied with all its agreements contained herein; and
(dii) shall use They have carefully examined the Memorandum and, in their opinion (A) the Memorandum, as of its date, did not include any untrue statement of a “cut-off date” within three days 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 such letter. References the Memorandum no event has occurred which should have been set forth in a supplement or amendment 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 letterMemorandum.
(i) None of Neither the Issuers Company nor any of their its subsidiaries nor any other Guarantor, shall have sustained, 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 its business from fire, explosion, flood, accident flood 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) decree, otherwise than as set forth or contemplated 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, such date there shall not have been any change in the capital stock or long-term debt of the Company or any Issuer and of its subsidiaries or any other Guarantorchange, or any change development involving a prospective change, in or effect on or any development having a prospective change in or effect on affecting the businessgeneral affairs, operationsmanagement, properties, assets, liabilitiesfinancial position, stockholders’ equity, earnings, condition (financial ' equity or otherwise), results of operations or management of any Issuer the Company and its subsidiaries or any other Guarantor, whether or not in the ordinary course of businesstaken as a whole, otherwise than as set forth or contemplated in each such Memorandum (exclusive of any amendment or supplement thereto)the Memorandum, the effect of which, in any such case described in clause (i) or (ii), is, in the sole judgment of Xxxxxxx Xxxxxthe 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).
(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 Xxxxxxx Xxxxx make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner described contemplated 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 Xxxxxxx Xxxxx, 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 general partner in this Agreement at and as of the Closing Date; that the general partner 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.
(h) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice 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 Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice President and the Chief Financial Officer of each Guarantor, or the General Partner of such Guarantor, as the case may be, as to the accuracy of the representations and warranties of such Guarantor in this Agreement at and as of the Closing 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.
(j) Subsequent to the date hereof, there execution and delivery of this Agreement no downgrading shall not have been any decrease occurred in the rating of accorded the Notes or any of the Partnership’s other debt securities by any “"nationally recognized statistical rating agency,” organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) under of the Securities Act, Rules and Regulations 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 any of the Notes.
(kh) 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 in the form substantially identical to the Registration Rights Agreement dated August 14, 1997 executed by the Issuers and the Guarantors and such agreement shall be in full force and effect. On or before the Closing Date, the Initial Purchasers and Counsel for the Company.
(i) The Initial Purchasers shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers, such further certificatesopinion or opinions, dated the Closing Date, with respect to such matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents or other and information as they may have reasonably requested from request for the Issuerspurpose 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 provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchasers.
Appears in 1 contract
Conditions to the Initial Purchasers’ Obligations. The respective obligations of the Initial Purchasers to purchase and pay for the Notes shall be hereunder are subject to the accuracy accuracy, when made and on the Closing Date, 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 hereofCompany contained herein, to the performance by the Issuers Company of their covenants and agreements hereunder its obligations hereunder, and to each of the following additional terms and conditions:
(a) The No Initial Purchaser shall have discovered and disclosed to the Company on or prior to the Closing Date that the Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of Xxxxxx Xxxxxx & Xxxxx, counsel for the Initial Purchasers ("KMZ"), is material or omits to state any fact which, in the opinion of KMZ, is material and is required to be stated therein or is necessary to made the statements therein not misleading.
(b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Registration Rights Agreement, the Memorandum, the Amended Keep Well Agreement and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be satisfactory in all respects to KMZ, and the Company shall have received an opinion, furnished to KMZ all documents and information that KMZ may reasonably request to enable KMZ to pass upon such matters.
(c) Counsel for the Company shall have furnished to the Initial Purchasers its written legal opinion addressed to the Initial Purchasers and dated the Closing Date, of Ledgewood, P.C., counsel for the Issuers, in form and substance satisfactory to Xxxxxxx Xxxxxthe Initial Purchasers, to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received hereto and to such other opinions of counsel, dated the Closing Date, of covering regulatory and local matters further effect as Xxxxxxx Xxxxx shall KMZ may reasonably request.
(cd) The Initial Purchaser shall have received an opinion, dated On or prior to the Closing Date, the Certificate of Xxxxxx Xxxxxx & Xxxxxxx llp, Counsel for Designation shall have been filed with the Initial Purchasers, with respect to the issuance and sale Secretary of State of the Notes and such other related matters as Xxxxxxx Xxxxx may reasonably require, and the Issuers shall have furnished to such counsel such documents as it may reasonably request for the purpose State 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 Section 6(a)Delaware.
(de) The Initial Purchasers You 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 be, in form and substance satisfactory to Xxxxxxx Xxxxx and Counsel for the Initial Purchasersyou, from Xxxxx Xxxxxx Xxxxxxxx LLP, independent public 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 or incorporated by reference in the Offering Memorandum; providedMemorandum as identified by you.
(f) The Company shall have furnished to the Initial Purchasers a certificate, howeverdated the Closing Date, that the letters referenced in this clause (d) shall use a “cut-off date” within three days of the date Chief Financial Officer 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.Company stating that:
(i) None The representations, warranties and agreements of the Issuers Company in Section 1 hereof are true and correct as of the Closing Date and the Company has complied with all its agreements contained herein;
(A) Neither the Company nor any of their its subsidiaries nor any other Guarantor, shall have sustained, has sustained since the date of the latest audited quarterly financial statements included or incorporated by reference in the Offering Memorandum (exclusive of any amendment or supplement thereto), any material loss or interference with their respective businesses or properties its business from fire, explosion, flood, accident flood 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) decree, otherwise than as set forth or contemplated in the Offering Memorandum or (exclusive B) since such date there has not been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Memorandum; and
(iii) She has carefully examined the Memorandum and, in her opinion (A) the Memorandum, as of its date, 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 Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Memorandum.
(i) Neither the Company nor any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included or supplement thereto); and incorporated by reference in the 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 Memorandum or (ii) since the respective dates as of which information is given in each Memorandum, such date there shall not have been any change in the capital stock or long-term debt of the Company or any Issuer and of its subsidiaries or any other Guarantorchange, or any change development involving a prospective change, in or effect on or any development having a prospective change in or effect on affecting the businessgeneral affairs, operationsmanagement, properties, assets, liabilitiesfinancial position, stockholders’ equity, earnings, condition (financial ' equity or otherwise), results of operations or management of any Issuer the Company and its subsidiaries or any other Guarantor, whether or not in the ordinary course of businesssubsidiaries, otherwise than as set forth or contemplated in each such Memorandum (exclusive of any amendment or supplement thereto)the Memorandum, the effect of which, in any such case described in clause (i) or and (ii), is, in the sole judgment of Xxxxxxx Xxxxxthe 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).
(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 Xxxxxxx Xxxxx make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes Securities on the terms and in the manner described contemplated 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 Xxxxxxx Xxxxx, 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 general partner in this Agreement at and as of the Closing Date; that the general partner 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.
(h) The Initial Purchasers shall have received a certificate, dated the Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice President and the Chief Financial Officer of Finance Co as Subsequent to the accuracy execution and delivery 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 no downgrading shall have received a certificate, dated the Closing Date and in form and substance satisfactory to Xxxxxxx Xxxxx, of the Chairman of the Board, the President or a Vice President and the Chief Financial Officer of each Guarantor, or the General Partner of such Guarantor, as the case may be, as to the accuracy of the representations and warranties of such Guarantor in this Agreement at and as of the Closing 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.
(j) Subsequent to the date hereof, there shall not have been any decrease occurred in the rating accorded the Securities or any other outstanding securities of the Notes or any of the Partnership’s other debt securities Company by any “"nationally recognized statistical rating agencyorganization,” " as that term is defined by the Commission for purposes of Rule 436(g)(2) under of the Securities Act, Rules and Regulations and (ii) 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 NotesSecurities.
(ki) The Notes Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be eligible for clearance such) as to make it, in the judgment of a majority in interest of the Initial Purchasers, impracticable or inadvisable to proceed with the offering or delivery of the Securities on the terms and settlement through in the Depository Trust Companymanner contemplated in the Memorandum.
(lj) On the Closing Date, the The Initial Purchasers shall have received on 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 date hereof the Registration Rights Agreement executed by the Issuers Company.
(k) KMZ shall have furnished to the Initial Purchasers their written legal opinion addressed to the Initial Purchasers and the Guarantors and such agreement shall be in full force and effect. On or before dated the Closing Date, in form and substance satisfactory to the Initial Purchasers Purchasers. All opinions, letters, evidence and Counsel for certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the Initial Purchasers shall have received such further certificates, documents or other information as provisions hereof only if they may have reasonably requested from the Issuersare in form and substance satisfactory to KMZ.
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