Conditions to the Obligations of the Initial Purchaser. The obligations of the Initial Purchaser to purchase the Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein at the date and time that this Agreement is executed and delivered by the parties hereto (the "Execution Time"), and at the Closing Date as specified in Section 7(g), to the accuracy in all material respects of the statements of the Company made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company of their obligations hereunder at or prior to the Closing Date and to the following additional conditions: (a) The Company shall have entered into a Registration Rights Agreement with the Initial Purchaser substantially in the form attached hereto as Exhibit A. (b) The Company and the Trustee shall have entered into the Indenture. (c) The Company shall have furnished to the Initial Purchaser the opinion of Xxxxxx, Xxxx & Xxxxxxxx, L.L.P., Counsel for the Company, dated the Closing Date, subject to customary qualifications and exceptions reasonably acceptable to Counsel for the Initial Purchaser, substantially to the effect that: (i) the Company is a corporation validly existing and in good standing under the laws of California and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions in which the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect; (ii) each of the Guarantors organized under the laws of the State of California (the "California Guarantors") is a corporation validly existing and in good standing under the laws of the jurisdiction in which it is chartered or organized and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions in which the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect; (iii) the Company has the authorized, issued and outstanding capitalization as set forth in the Final Memorandum under the caption "Capitalization." All of the issued shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable and were not, to the best of such counsel's knowledge, issued in violation of any preemptive or similar rights; (iv) the issued shares of capital stock of each of the California Guarantors have been duly authorized and validly issued, are fully paid and nonassessable and, the issued shares of capital stock of each of the Guarantors, except for directors' qualifying shares and except as otherwise set forth in or contemplated by the Final Memorandum are owned of record and beneficially by the Company, either directly or through wholly owned subsidiaries, free and clear, to the best of such counsel's knowledge, of any pledge, lien, encumbrance, security interest, restriction on voting or transfer, preemptive rights or other defect or claim of any third party; (v) this Agreement has been duly authorized, executed and delivered by the Company; (vi) each of the Registration Rights Agreement and the Indenture have been duly authorized, executed and delivered by the Company and the California Guarantors and constitute legal, valid and binding obligations of the Company and its subsidiaries, enforceable against the Company in accordance with their terms, except as the same may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably satisfactory to Counsel for the Initial Purchaser; (vii) the Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company and the Guarantors entitled to the benefits of the Indenture and enforceable against the Company and the Guarantors in accordance with their terms, except as the same may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser; (viii) the Guarantees executed by the California Guarantors have been duly authorized and, when executed in accordance with the provisions of the Indenture, all of the Guarantees will constitute legal, valid and binding obligations of the Guarantors entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms, except as may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser; (ix) the statements set forth under the headings "Acquisition of Xxxxxx", "Description of Senior Notes", "Consent Solicitation", "Description of
Appears in 1 contract
Conditions to the Obligations of the Initial Purchaser. The obligations of the Initial Purchaser to purchase the Notes Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Issuers contained herein at the date Execution Time and time that this Agreement is executed and delivered by the parties hereto (the "Execution Time"), and at the Closing Date as specified in Section 7(g)Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company Issuers of their obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Company Issuers shall have entered into a Registration Rights Agreement with requested and caused Kxxxxxxx & Exxxx, special counsel for the Issuers, to furnish to the Initial Purchaser its opinion, dated the Closing Date and addressed to the Initial Purchaser substantially in the form attached hereto of Exhibit B hereto. In rendering such opinion, such counsel may rely, as Exhibit A.to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Issuers and public officials.
(b) The Company and the Trustee Issuers shall have entered into requested and caused Jxxx X. Xxxx, General Counsel of Parent, to furnish to the IndentureInitial Purchaser his opinion, dated the Closing Date and addressed to the Initial Purchaser, substantially in the form of Exhibit C hereto.
(c) The Company Initial Purchaser shall have furnished to the Initial Purchaser the opinion of Xxxxxxreceived from Cxxxxx Xxxxxx & Rxxxxxx llp, Xxxx & Xxxxxxxx, L.L.P., Counsel for the Company, dated the Closing Date, subject to customary qualifications and exceptions reasonably acceptable to Counsel counsel for the Initial Purchaser, substantially such opinion or opinions, dated the Closing Date and addressed to the effect that:
(i) Initial Purchaser, with respect to the Company is a corporation validly existing issuance and in good standing under the laws of California and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions in which the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect;
(ii) each sale of the Guarantors organized under Securities, the laws of Indenture, the State of California (Registration Rights Agreement, the "California Guarantors") is a corporation validly existing Disclosure Package and in good standing under the laws of the jurisdiction in which it is chartered or organized and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions in which the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect;
(iii) the Company has the authorized, issued and outstanding capitalization as set forth in the Final Memorandum under the caption "Capitalization." All of the issued shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable and were not, to the best of such counsel's knowledge, issued in violation of any preemptive or similar rights;
(iv) the issued shares of capital stock of each of the California Guarantors have been duly authorized and validly issued, are fully paid and nonassessable and, the issued shares of capital stock of each of the Guarantors, except for directors' qualifying shares and except other related matters as otherwise set forth in or contemplated by the Final Memorandum are owned of record and beneficially by the Company, either directly or through wholly owned subsidiaries, free and clear, to the best of such counsel's knowledge, of any pledge, lien, encumbrance, security interest, restriction on voting or transfer, preemptive rights or other defect or claim of any third party;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) each of the Registration Rights Agreement and the Indenture have been duly authorized, executed and delivered by the Company and the California Guarantors and constitute legal, valid and binding obligations of the Company and its subsidiaries, enforceable against the Company in accordance with their terms, except as the same may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably satisfactory to Counsel for the Initial Purchaser;
(vii) the Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Initial Purchaser pursuant to this Agreementmay reasonably require, will constitute legal, valid and binding obligations of the Company and the Guarantors entitled Issuers shall have furnished to the benefits of the Indenture and enforceable against the Company and the Guarantors in accordance with their terms, except as the same may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably acceptable to Counsel such documents as they request for the Initial Purchaser;
(viii) the Guarantees executed by the California Guarantors have been duly authorized and, when executed in accordance with the provisions purpose of the Indenture, all of the Guarantees will constitute legal, valid and binding obligations of the Guarantors entitled enabling them to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms, except as may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by pass upon such counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser;
(ix) the statements set forth under the headings "Acquisition of Xxxxxx", "Description of Senior Notes", "Consent Solicitation", "Description ofmatters.
Appears in 1 contract
Conditions to the Obligations of the Initial Purchaser. The obligations of the Initial Purchaser to purchase the Notes Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein at the date Execution Time and time that this Agreement is executed and delivered by the parties hereto (the "Execution Time"), and at the Closing Date as specified in Section 7(g)Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company of their its obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Company shall have entered into a Registration Rights Agreement with requested and caused (i) Sidley Austin LLP, counsel for the Company, to furnish to the Initial Purchaser its opinion and negative assurance letter, each dated the Closing Date and addressed to the Initial Purchaser, substantially in the form attached of Exhibit A-1 hereto and (ii) Xxxxxx & Xxxxxx LLP, tax counsel for the Company, to furnish to the Initial Purchaser its opinion, dated as of the Closing Date and addressed to the Initial Purchaser, substantially in the form of Exhibit A.A-2 hereto.
(b) The Company and the Trustee shall have entered into requested and caused the Indenturegeneral counsel of the Company to furnish the Initial Purchaser an opinion, dated the Closing Date and addressed to the Initial Purchaser, substantially in the form of Exhibit B hereto.
(c) The Initial Purchaser shall have received from Xxxxxxxx & Xxxxxxxx LLP, counsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date and addressed to the Initial Purchaser, with respect to the issuance and sale of the Securities, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Initial Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Initial Purchaser a certificate of the opinion Company, signed by (x) the chief executive officer of Xxxxxx, Xxxx & Xxxxxxxx, L.L.P., Counsel for the Company and (y) the principal financial or accounting officer of the Company, dated the Closing Date, subject to customary qualifications and exceptions reasonably acceptable to Counsel for the Initial Purchaser, substantially to the effect that the signers of such certificate have carefully examined the Disclosure Package and the Final Memorandum and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company is a corporation validly existing in this Agreement are true and in good standing under correct on and as of the laws of California Closing Date with the same effect as if made on the Closing Date, and is duly qualified the Company have complied with all the agreements and satisfied all the conditions on its part to do business as a foreign corporation and is in good standing under be performed or satisfied hereunder at or prior to the laws of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions in which the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect;Closing Date; and
(ii) each since the date of the Guarantors organized under the laws of the State of California (the "California Guarantors") is a corporation validly existing and in good standing under the laws of the jurisdiction in which it is chartered or organized and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions in which the failure to so qualify, singly or most recent financial statements included in the aggregate, would not have a Material Adverse Effect;
(iii) the Company has the authorized, issued Disclosure Package and outstanding capitalization as set forth in the Final Memorandum under the caption "Capitalization." All of the issued shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable and were not, to the best of such counsel's knowledge, issued in violation (exclusive of any preemptive amendment or similar rights;
(iv) the issued shares of capital stock of each of the California Guarantors have been duly authorized and validly issuedsupplement thereto), are fully paid and nonassessable and, the issued shares of capital stock of each of the Guarantors, except for directors' qualifying shares and except as otherwise set forth in or contemplated by the Final Memorandum are owned of record and beneficially by the Company, either directly or through wholly owned subsidiaries, free and clear, to the best of such counsel's knowledge, of any pledge, lien, encumbrance, security interest, restriction on voting or transfer, preemptive rights or other defect or claim of any third party;
(v) this Agreement there has been duly authorizedno material adverse change in the condition (financial or otherwise), executed and delivered by the Company;
(vi) each of the Registration Rights Agreement and the Indenture have been duly authorizedprospects, executed and delivered by the Company and the California Guarantors and constitute legal, valid and binding obligations business or properties of the Company and its subsidiaries, enforceable against taken as a whole, whether or not arising from transactions in the Company in accordance with their termsordinary course of business, except as set forth in or contemplated in the same may be limited by Disclosure Package and the Final Memorandum (Aexclusive of any amendment or supplement thereto).
(e) At the Execution Time and at the Closing Date, (i) the Company shall have requested and caused Deloitte & Touche LLP to furnish to the Initial Purchaser customary comfort letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and confirming that they are independent accountants within the meaning of the Exchange Act and the applicable bankruptcypublished rules and regulations thereunder and (ii) the Company shall have furnished to the Initial Purchaser a certificate of its chief financial officer, insolvencydated respectively as of the Execution Time and as of the Closing Date, reorganizationin form and substance satisfactory to the Initial Purchaser and providing “management comfort” with respect to certain financial information contained in the Disclosure Package and the Final Memorandum.
(f) Subsequent to the Execution Time or, moratorium if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or other laws supplement thereto) and the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting creditors' rights generallythe condition (financial or otherwise), including without limitation prospects, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), the effect of statutory which, in any case referred to in clause (i) or other laws regarding fraudulent conveyances (ii) above, is, in the sole judgment of the Initial Purchaser, so material and adverse as to make it impractical or transfersinadvisable to proceed with the offering or delivery of the Securities as contemplated in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).
(g) The Securities shall be eligible for clearance and settlement through The Depository Trust Company.
(h) Subsequent to the Execution Time, preferential transfers there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or distributions by corporations any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(i) Prior to shareholdersthe Closing Date, the Company shall have furnished to the Initial Purchaser such further information, certificates and documents as the Initial Purchaser may reasonably request.
(Bj) general principles The Company shall have filed with the Secretary of equityState for the State of Delaware the Certificate of Designation, whether considered at law or at equity, including, without limitation, concepts and the same shall have been declared effective. If any of materiality, reasonableness, good faith the conditions specified in this Section 6 shall not have been fulfilled when and fair dealingas provided in this Agreement, or (C) other customary exceptions specified by such counsel if any of the opinions and certificates mentioned above or elsewhere in their opinion and this Agreement shall not be reasonably satisfactory in form and substance to Counsel the Initial Purchaser and counsel for the Initial Purchaser;
(vii) the Notes have been duly authorized and, when executed this Agreement and authenticated in accordance with the provisions all obligations of the Indenture and delivered to and paid for Initial Purchaser hereunder may be cancelled at, or at any time prior to, the Closing Date by the Initial Purchaser pursuant Purchaser. Notice of such cancellation shall be given to this Agreement, will constitute legal, valid and binding obligations of the Company and in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the Guarantors entitled to the benefits office of the Indenture and enforceable against the Company and the Guarantors in accordance with their terms, except as the same may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser;
(viii) , at 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, on the Guarantees executed by the California Guarantors have been duly authorized and, when executed in accordance with the provisions of the Indenture, all of the Guarantees will constitute legal, valid and binding obligations of the Guarantors entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms, except as may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser;
(ix) the statements set forth under the headings "Acquisition of Xxxxxx", "Description of Senior Notes", "Consent Solicitation", "Description ofClosing Date.
Appears in 1 contract
Samples: Purchase Agreement (Vistra Corp.)
Conditions to the Obligations of the Initial Purchaser. The obligations of the Initial Purchaser to purchase the Notes Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Issuers contained herein at the date Execution Time and time that this Agreement is executed and delivered by the parties hereto (the "Execution Time"), and at the Closing Date as specified in Section 7(g)Date, to the accuracy in all material respects of the statements of the Company Issuers made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company Issuers of their respective obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) : The Company Initial Purchaser shall have entered into a Registration Rights Agreement with received from Ellenoff Xxxxxxxx & Schole LLP, counsel for the Company, an opinion, dated the Closing Date and addressed to the Initial Purchaser Purchaser, substantially in the form of Annex A attached hereto as Exhibit A.
(b) hereto. The Company and the Trustee Initial Purchaser shall have entered into received from Xxxx X. Xxxxxx, General Counsel for the Issuers, the opinion, dated the Closing Date and addressed to the Initial Purchaser, substantially in the form of Annex B attached hereto. The Initial Purchaser shall have received from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date and addressed to the Initial Purchaser, with respect to the issuance and sale of the Securities, the Indenture.
, the Registration Rights Agreement, the Offering Memorandum (cas amended or supplemented at the Closing Date) and other related matters as the Initial Purchaser may reasonably require, and each of the Issuers shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. The Company shall have furnished to the Initial Purchaser a certificate of the opinion Company, signed by (x) the Chairman of Xxxxxx, Xxxx & Xxxxxxxx, L.L.P., Counsel for the Board or the President and (y) the principal financial or accounting officer of the Company, dated the Closing Date, subject to customary qualifications and exceptions reasonably acceptable to Counsel for the Initial Purchaser, substantially to the effect that the signers of such certificate have reviewed the Offering Memorandum, any amendment or supplement to the Offering Memorandum and this Agreement and that:
(i) : the Company is a corporation validly existing representations and in good standing under the laws of California and is duly qualified to do business as a foreign corporation and is in good standing under the laws warranties of each jurisdiction which requires such qualification wherein it owns Issuer in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and each Issuer has complied with all the agreements and satisfied all the conditions on its part to be performed or leases properties satisfied hereunder at or conducts business, except in such jurisdictions in which prior to the failure to so qualify, singly Closing Date; and since the date of the most recent financial statements included or incorporated by reference in the aggregateOffering Memorandum (exclusive of any amendment or supplement thereto), would not have a Material Adverse Effect;
(ii) each of the Guarantors organized under the laws of the State of California (the "California Guarantors") is a corporation validly existing and in good standing under the laws of the jurisdiction in which it is chartered or organized and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions in which the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect;
(iii) the Company there has the authorized, issued and outstanding capitalization as set forth in the Final Memorandum under the caption "Capitalization." All of the issued shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable and were not, no material adverse change to the best of such counsel's knowledgecondition (financial or otherwise), issued in violation of any preemptive earnings, business or similar rights;
(iv) the issued shares of capital stock of each of the California Guarantors have been duly authorized and validly issued, are fully paid and nonassessable and, the issued shares of capital stock of each of the Guarantors, except for directors' qualifying shares and except as otherwise set forth in or contemplated by the Final Memorandum are owned of record and beneficially by the Company, either directly or through wholly owned subsidiaries, free and clear, to the best of such counsel's knowledge, of any pledge, lien, encumbrance, security interest, restriction on voting or transfer, preemptive rights or other defect or claim of any third party;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) each of the Registration Rights Agreement and the Indenture have been duly authorized, executed and delivered by the Company and the California Guarantors and constitute legal, valid and binding obligations properties of the Company and its subsidiaries, enforceable against taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto). At the Execution Time and at the Closing Date, the Issuers shall have requested and caused BDO Xxxxxxx, LLP to furnish to the Initial Purchaser, a “comfort” letter, dated as of the Execution Time and a bring-down “comfort letter”, dated as of the Closing Date, in form and substance satisfactory to the Initial Purchaser, confirming that they are independent accountants within the meaning of the Exchange Act and the applicable rules and regulations thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information contained in the Offering Memorandum. Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Offering Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6; or (ii) any change, or any development involving a prospective change in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Initial Purchaser, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated in the Offering Memorandum (exclusive of any amendment or supplement thereto). The Securities shall have been designated as PORTAL-eligible securities in accordance with their termsthe rules and regulations of the NASD and the Securities shall be eligible for clearance and settlement through The Depository Trust Company. Subsequent to the Execution Time, except there shall not have been any decrease in the rating of any of the Company’s securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. Prior to the Closing Date, the Company shall have furnished to the Initial Purchaser such further information, certificates and documents as the same Initial Purchaser may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation reasonably request. If any of the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith conditions specified in this Section 6 shall not have been fulfilled when and fair dealingas provided in this Agreement, or (C) other customary exceptions specified by such counsel if any of the opinions and certificates mentioned above or elsewhere in their opinion and this Agreement shall not be reasonably satisfactory in form and substance to Counsel the Initial Purchaser and counsel for the Initial Purchaser;
(vii) the Notes have been duly authorized and, when executed this Agreement and authenticated in accordance with the provisions all obligations of the Indenture and delivered to and paid for Initial Purchaser hereunder may be cancelled at, or at any time prior to, the Closing Date by the Initial Purchaser pursuant Purchaser. Notice of such cancellation shall be given to this Agreement, will constitute legal, valid and binding obligations of the Company and in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the Guarantors entitled to the benefits office of the Indenture and enforceable against the Company and the Guarantors in accordance with their terms, except as the same may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser;
(viii) , at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Guarantees executed by the California Guarantors have been duly authorized and, when executed in accordance with the provisions of the Indenture, all of the Guarantees will constitute legal, valid and binding obligations of the Guarantors entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms, except as may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser;
(ix) the statements set forth under the headings "Acquisition of Xxxxxx", "Description of Senior Notes", "Consent Solicitation", "Description ofClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Initial Purchaser. The obligations of the Initial Purchaser to purchase the Notes and the Guarantees shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Endeavour Parties contained herein at the date Execution Time and time that this Agreement is executed and delivered by the parties hereto (the "Execution Time"), and at the Closing Date (except to the extent such representations and warranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of such specified in Section 7(gearlier date)), to the accuracy in all material respects of the statements of the Company Endeavour Parties made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company Endeavour Parties of their obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Company shall have entered into a Registration Rights Agreement with requested and caused Xxxxxx & Xxxxxx LLP, counsel for the Endeavour Parties, to furnish to the Initial Purchaser (i) an opinion, dated the Closing Date, and addressed to the Initial Purchaser, in a form substantially consistent with the opinions delivered to the initial purchasers with respect to the Existing Notes on February 23, 2012, (ii) a U.S. collateral opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and (iii) a U.K. collateral opinion, dated the Closing Date, in a form attached hereto as Exhibit A.and substance reasonably satisfactory to the Initial Purchaser
(b) The Company and the Trustee Initial Purchaser shall have entered into received the Indenturecollateral opinion of De Brauw Blackstone Westbroek, opining as to the law of Netherlands, dated the Closing Date, in a form and substance reasonably satisfactory to the Initial Purchaser.
(c) The Initial Purchaser shall have received the opinion of Xxxxxxxx and Wedge, opining as to the law of Nevada, addressed to the Initial Purchaser and dated the Closing Date, in form substantially consistent with the opinion delivered to the initial purchasers with respect to the Existing Notes on February 23, 2012.
(d) The Initial Purchaser shall have received from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date and addressed to the Initial Purchaser, with respect to the issuance and sale of the Notes and the Guarantees, the Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Circular (as amended or supplemented at the Closing Date) and other related matters as the Initial Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Initial Purchaser certificates of each of the opinion Endeavour Parties, signed by (x) the Chairman of Xxxxxx, Xxxx & Xxxxxxxx, L.L.P., Counsel for the CompanyBoard or the President and (y) the principal financial or accounting officer of each of the Endeavour Parties, dated the Closing Date, subject to customary qualifications and exceptions reasonably acceptable to Counsel for the Initial Purchaser, substantially to the effect that the signers of such certificate have carefully examined the Disclosure Package and the Final Circular and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Notes, and this Agreement and that:
(i) the Company is representations and warranties of the Endeavour Parties in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date (except to the extent such representations and warranties expressly relate to a corporation validly existing and in good standing under the laws of California and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)), and the failure Endeavour Parties have complied with all the agreements and satisfied all the conditions on their part to so qualify, singly be performed or in satisfied hereunder at or prior to the aggregate, would not have a Material Adverse Effect;Closing Date; and
(ii) each since the date of the Guarantors organized under the laws of the State of California (the "California Guarantors") is a corporation validly existing and in good standing under the laws of the jurisdiction in which it is chartered or organized and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions in which the failure to so qualify, singly or most recent financial statements included in the aggregateDisclosure Package and the Final Circular (exclusive of any amendment or supplement thereto), would not have a there has been no Material Adverse Effect;
(iii) the Company has the authorized, issued and outstanding capitalization as set forth in the Final Memorandum under the caption "Capitalization." All of the issued shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable and were not, to the best of such counsel's knowledge, issued in violation of any preemptive or similar rights;
(iv) the issued shares of capital stock of each of the California Guarantors have been duly authorized and validly issued, are fully paid and nonassessable and, the issued shares of capital stock of each of the Guarantors, except for directors' qualifying shares and except as otherwise set forth in or contemplated by in the Disclosure Package and the Final Memorandum are owned Circular (exclusive of record and beneficially by any amendment or supplement thereto).
(f) On the date hereof, the Initial Purchaser shall have received from KPMG LLP, independent registered public accounting firm for the Company, either directly or through wholly owned subsidiaries, free and clear, a “comfort letter” dated the date hereof addressed to the best Initial Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser, covering the financial information in the Disclosure Package and other customary matters. In addition, on the Closing Date, the Initial Purchaser shall have received from such accountants, a “bring-down comfort letter” dated the Closing Date addressed to the Initial Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial information in the Final Circular 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.
(i) On the Closing Date, the Initial Purchaser shall have received from Ernst & Young LLP (Aberdeen, Scotland), independent auditors for the Alba Properties purchased in the COP Acquisition, separate “comfort letters” dated the Closing Date addressed to the Initial Purchaser and Credit Suisse (Europe) Limited, in form and substance reasonably satisfactory to the Initial Purchaser and Credit Suisse (Europe) Limited, covering the financial information with respect to the Alba Properties purchased in the COP Acquisition in the Disclosure Package and other customary matters and (ii) the Initial Purchaser shall have received from Ernst & Young LLP, independent registered public accounting firm for the Company, (A) on the date hereof, a “comfort letter” dated the date hereof addressed to the Initial Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser, covering the financial information in the Disclosure Package and other customary matters and (B) on the Closing Date, the Initial Purchaser shall have received from such accountants, a “bring-down comfort letter” dated the Closing Date addressed to the Initial Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial information in the Final Circular 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.
(h) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any amendment or supplement thereto) and the Final Circular (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) or (f) of this Section 6; or (ii) any Material Adverse Effect, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Initial Purchaser, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated in the Disclosure Package and the Final Circular (exclusive of any amendment or supplement thereto).
(i) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(2) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) Netherland, Xxxxxx & Associates, Inc. shall have delivered to you on the date hereof and on the Closing Date, letters in form and substance reasonably satisfactory to you, stating, as of the date hereof and as of the Closing Date the conclusions and findings of such counsel's knowledge, of any pledge, lien, encumbrance, security interest, restriction on voting or transfer, preemptive rights or other defect or claim of any third party;
(v) this Agreement has been duly authorized, executed firm with respect to the oil and delivered by the Company;
(vi) each of the Registration Rights Agreement and the Indenture have been duly authorized, executed and delivered by the Company and the California Guarantors and constitute legal, valid and binding obligations gas reserves of the Company and its subsidiariesSubsidiaries.
(k) The Company shall have executed and delivered an officer’s certificate pursuant to Section 2.13 of the Indenture, enforceable against an opinion of counsel addressed to the Company Trustee with respect thereto and an authentication order for the Notes.
(l) The Endeavour Parties shall have executed and delivered the Registration Rights Agreement, in accordance with their terms, except as the same may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith form and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and substance reasonably satisfactory to Counsel the Initial Purchaser, and the Initial Purchaser shall have received executed copies thereof.
(m) The Notes shall be eligible for clearance and settlement through DTC.
(n) Prior to the Closing Date, the Company shall have furnished to the Initial Purchaser such further information, certificates and documents as the Initial Purchaser may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Initial Purchaser and counsel for the Initial Purchaser;
(vii) the Notes have been duly authorized and, when executed this Agreement and authenticated in accordance with the provisions all obligations of the Indenture and delivered to and paid for Initial Purchaser hereunder may be canceled at, or at any time prior to, the Closing Date by the Initial Purchaser pursuant Purchaser. Notice of such cancellation shall be given to this Agreement, will constitute legal, valid and binding obligations of the Company and in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the Guarantors entitled to the benefits office of the Indenture and enforceable against the Company and the Guarantors in accordance with their terms, except as the same may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser;
(viii) , at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 9:00 a.m., New York time, on the Guarantees executed by the California Guarantors have been duly authorized and, when executed in accordance with the provisions of the Indenture, all of the Guarantees will constitute legal, valid and binding obligations of the Guarantors entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms, except as may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser;
(ix) the statements set forth under the headings "Acquisition of Xxxxxx", "Description of Senior Notes", "Consent Solicitation", "Description ofClosing Date.
Appears in 1 contract
Conditions to the Obligations of the Initial Purchaser. The obligations of the Initial Purchaser to purchase the Notes shall be hereunder are subject to the accuracy in all material respects accuracy, when made and on the Closing Date, of the representations and warranties on the part of the Company Transaction Entities contained herein at the date and time that this Agreement is executed and delivered by the parties hereto (the "Execution Time"), and at the Closing Date as specified in Section 7(g)herein, to the accuracy in all material respects of the statements of the Operating Partnership and the Company made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company each Transaction Entity of their its obligations hereunder at or prior to the Closing Date hereunder, and to each of the following additional terms and conditions:
(a) The Company Subsequent to the effective date of this Agreement, there shall not have entered into occurred (i) any material adverse change in the condition, financial or otherwise, business, prospects, operations, management, consolidated financial position, net worth, stockholders’ equity or results of operations of the Transaction Entities and the Subsidiaries and Joint Venture Entities considered as one enterprise or on the use or value of the Properties as a Registration Rights Agreement with whole or (ii) any event or development relating to or involving any of the Transaction Entities, Subsidiaries, Joint Venture Entities, or any partner, officer, director or trustee thereof, which makes any statement of a material fact made in the Final Memorandum untrue or which, in the opinion of the Transaction Entities and their counsel or the Initial Purchaser substantially and its counsel, requires the making of any addition to or change in the form attached hereto as Exhibit A.Disclosure Package or the Final Memorandum in order to state a material fact required by the Securities Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Disclosure Package or the Final Memorandum to reflect such event or development would, in your opinion, adversely affect the market for the Shares.
(b) The Company All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Shares, the Final Memorandum, and all other legal matters relating to this Agreement and the Trustee transactions contemplated hereby shall be reasonably satisfactory to counsel for the Initial Purchaser, and the Company shall have entered into the Indenturefurnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(c) Xxxxxxxx Chance US LLP shall have furnished to the Initial Purchaser its written opinion, as counsel to the Transaction Entities, addressed to the Initial Purchaser and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser, in the form set forth in Exhibit B hereto.
(d) Xxxxxxxxx Traurig, LLP shall have furnished to the Initial Purchaser its written opinion, as tax counsel to the Transaction Entities, addressed to the Initial Purchaser and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and counsel to the Initial Purchaser, to the effect that:
i. Commencing with its taxable year ended December 31, 2001, the Company was organized and has been operated in conformity with the requirements for qualification and taxation as a REIT under the Code and the proposed method of operation of the Company will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code.
ii. The Operating Partnership is classified as a partnership and not as (a) an association taxable as a corporation or (b) a “publicly traded partnership” taxable as a corporation under Section 7704(a) of the Code.
iii. The statements contained in the Final Memorandum under the captions “U.S. Federal Income Tax Considerations” and “Description of XX Xxxxx Realty Corp.’s Common Stock,” that describe applicable U.S. federal income tax law are correct in all material respects as of the Closing Date.
(e) The Initial Purchaser shall have received from Xxxxx & Xxxxxxx L.L.P. and Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Notes, the Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Initial Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(f) At the time of execution of this Agreement, the Initial Purchaser shall have received from Ernst & Young LLP a letter in connection with its auditing of the financial statements of the Company, in form and substance satisfactory to the Initial Purchaser, addressed to the Initial Purchaser and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (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 Final Memorandum, as of a date not more than three business days prior to the date hereof), the conclusions and findings of such firm with respect to the Company’s financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72.
(g) With respect to the letter of Ernst & Young LLP referred to in the preceding paragraph and delivered to the Initial Purchaser concurrently with the execution of this Agreement (the “Company initial letter”), the Company shall have furnished to the Initial Purchaser a letter (the opinion “Company bring-down letter”) of Xxxxxxsuch accountants, Xxxx addressed to the Initial Purchaser and dated the Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the Company bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Final Memorandum, as of a date not more than three business days prior to the date of the Company bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the Company initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the Company initial letter.
(h) At the time of execution of this Agreement, the Initial Purchaser shall have received from Ernst & XxxxxxxxYoung LLP a letter in connection with its auditing of the financial statements of Reckson, L.L.P.in form and substance satisfactory to the Initial Purchaser, Counsel for addressed to the CompanyInitial Purchaser and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (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 Final Memorandum, as of a date not more than three business days prior to the date hereof), the conclusions and findings of such firm with respect to Reckson’s financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72.
(i) With respect to the letter of Ernst & Young LLP referred to in the preceding paragraph and delivered to the Initial Purchaser concurrently with the execution of this Agreement (the “Reckson initial letter”), the Company shall have furnished to the Initial Purchaser a letter (the “Reckson bring-down letter”) of such accountants, addressed to the Initial Purchaser and dated the Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the Reckson bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Final Memorandum, as of a date not more than three business days prior to the date of the Reckson bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the Reckson initial letter and (iii) confirming in all material respects the conclusions and findings set forth in the Reckson initial letter.
(j) The Company and the Operating Partnership shall have furnished to the Initial Purchaser a certificate, dated the Closing Date, subject to customary qualifications of its, or its general partner’s, Chief Executive Officer and exceptions reasonably acceptable to Counsel for the Initial Purchaser, substantially to the effect Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the Transaction Entities in Section 1 are true and correct as of the Closing Date; the Company is a corporation validly existing has complied with all its agreements contained herein; and the conditions set forth in good standing under the laws of California Sections 7(a) and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions in which the failure to so qualify, singly or in the aggregate, would not (b) have a Material Adverse Effect;been fulfilled; and
(ii) each They have carefully examined the Final Memorandum and the Disclosure Package, and, in their opinion (A) the Final Memorandum, and the Disclosure Package did not and do not include any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the light of the Guarantors organized circumstances under which they were made) not misleading and (B) since the laws of the State of California (the "California Guarantors") is a corporation validly existing and in good standing under the laws of the jurisdiction in Effective Date, no event has occurred which it is chartered or organized and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions in which the failure to so qualify, singly or in the aggregate, would not should have a Material Adverse Effect;
(iii) the Company has the authorized, issued and outstanding capitalization as been set forth in a supplement or amendment to the Final Memorandum under that has not been so set forth.
(k) On the caption "Capitalization." All Closing Date, counsel for the Initial Purchaser shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the issued shares Shares as herein contemplated and related proceedings, or in order to evidence the accuracy of capital stock any of the Company have been duly authorized representations or warranties, or the fulfillment of any of the conditions, herein contained; and validly issued all proceedings taken by the Transaction Entities in connection with the issuance and are fully paid sale of the Shares as herein contemplated shall be satisfactory in form and nonassessable and were not, substance to the best of such counsel's knowledge, issued in violation of any preemptive or similar rights;
(iv) the issued shares of capital stock of each of the California Guarantors have been duly authorized Initial Purchaser and validly issued, are fully paid and nonassessable and, the issued shares of capital stock of each of the Guarantors, except for directors' qualifying shares and except as otherwise set forth in or contemplated by the Final Memorandum are owned of record and beneficially by the Company, either directly or through wholly owned subsidiaries, free and clear, to the best of such counsel's knowledge, of any pledge, lien, encumbrance, security interest, restriction on voting or transfer, preemptive rights or other defect or claim of any third party;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) each of the Registration Rights Agreement and the Indenture have been duly authorized, executed and delivered by the Company and the California Guarantors and constitute legal, valid and binding obligations of the Company and its subsidiaries, enforceable against the Company in accordance with their terms, except as the same may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably satisfactory to Counsel for the Initial Purchaser;.
(viil) The Company and the Notes Operating Partnership shall have been duly authorized andfurnished or caused to be furnished to you such further certificates and documents as the Initial Purchaser or counsel to the Initial Purchaser shall have reasonably requested. All opinions, when executed letters, evidence and authenticated certificates mentioned above or elsewhere in accordance this Agreement shall be deemed to be in compliance with the provisions of the Indenture hereof only if they are in form and delivered substance reasonably satisfactory to and paid for by the Initial Purchaser pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company and the Guarantors entitled to the benefits of the Indenture and enforceable against the Company and the Guarantors in accordance with their terms, except as the same may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser;
(viii) the Guarantees executed . Any certificate or document signed by the California Guarantors have been duly authorized and, when executed in accordance with the provisions any officer of the Indenture, all of the Guarantees will constitute legal, valid Transaction Entities and binding obligations of the Guarantors entitled delivered to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms, except as may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealingInitial Purchaser, or (C) other customary exceptions specified by such to counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser;
(ix) , shall be deemed a representation and warranty by the Transaction Entities to the Initial Purchaser as to the statements set forth under the headings "Acquisition of Xxxxxx", "Description of Senior Notes", "Consent Solicitation", "Description ofmade therein.
Appears in 1 contract
Conditions to the Obligations of the Initial Purchaser. The obligations of the Initial Purchaser to purchase the Notes Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Issuer and the Guarantor contained herein at the date Execution Time and time that this Agreement is executed and delivered by the parties hereto (the "Execution Time"), and at the Closing Date as specified in Section 7(g)Date, to the accuracy in all material respects of the statements of the Company Issuer and the Guarantor made in any certificates delivered pursuant to the provisions hereof, to the performance by each of the Company Issuer and the Guarantor of their its respective obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Company Issuer shall have entered into a Registration Rights Agreement with requested and caused (i) Xxxx, Gotshal & Xxxxxx, counsel for the Initial Purchaser substantially Issuer, to furnish to the Representative its opinions, dated the Closing Date and addressed to the Representative in the form attached set forth in Exhibits A and B hereto as and (ii) Xxxxxxx Xxxxxx, Regional General Counsel for the Company, to furnish to the Representative his opinion, dated the Closing Date and addressed to the Representative in the form set forth in Exhibit A.C hereto.
(b) The Company Representative shall have received from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date and addressed to the Representative, with respect to the issuance and sale of the Securities, the Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representative may reasonably require, and the Trustee Issuer shall have entered into furnished to such counsel such documents as they request for the Indenturepurpose of enabling them to pass upon such matters.
(c) The Company Issuer shall have furnished to the Initial Purchaser Representative a certificate of the opinion of Issuer, signed by (x) Xxxx Xxxxxxx and (y) Xxxxxx Xxxxxx, Xxxx & Xxxxxxxx, L.L.P., Counsel for the Company, dated the Closing Date, subject to customary qualifications and exceptions reasonably acceptable to Counsel for the Initial Purchaser, substantially to the effect that the signers of such certificate have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that:
(i) the Company is a corporation validly existing representations and warranties of the Issuer in good standing under this Agreement are true and correct on and as of the laws of California Closing Date with the same effect as if made on the Closing Date, and is duly qualified the Issuer has complied with all the agreements and satisfied all the conditions on its part to do business as a foreign corporation and is in good standing under be performed or satisfied hereunder at or prior to the laws of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions in which the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect;Closing Date; and
(ii) each since the date of the Guarantors organized under the laws of the State of California (the "California Guarantors") is a corporation validly existing and in good standing under the laws of the jurisdiction in which it is chartered or organized and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions in which the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect;
(iii) the Company has the authorized, issued and outstanding capitalization as set forth most recent financial statements included in the Final Memorandum under (exclusive of any amendment or supplement thereto), there has been no material adverse change in the caption "Capitalization." All condition (financial or otherwise), prospects, earnings, business or properties of the issued shares Issuer and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable and were not, to the best of such counsel's knowledge, issued in violation of any preemptive or similar rights;
(iv) the issued shares of capital stock of each of the California Guarantors have been duly authorized and validly issued, are fully paid and nonassessable and, the issued shares of capital stock of each of the Guarantorsbusiness, except for directors' qualifying shares and except as otherwise set forth in or contemplated by in the Final Memorandum are owned (exclusive of record any amendment or supplement thereto).
(d) The Guarantor shall have furnished to the Representative a certificate of the Guarantor, signed by (x) Xxxx Xxxxxxx and beneficially by (y) Xxxxxx Xxxxxx, dated the Company, either directly or through wholly owned subsidiaries, free and clearClosing Date, to the best effect that the signers of such counsel's knowledgecertificate have carefully examined the Final Memorandum, any amendment or supplement to the Final Memorandum and this Agreement and that:
(i) the representations and warranties of the Guarantor in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Guarantor has complied with all the agreements and satisfied all 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 most recent financial statements included in the Final Memorandum (exclusive of any pledgeamendment or supplement thereto), lien, encumbrance, security interest, restriction on voting or transfer, preemptive rights or other defect or claim of any third party;
(v) this Agreement there has been duly authorizedno material adverse change in the condition (financial or otherwise), executed and delivered by the Company;
(vi) each prospects, earnings, business or properties of the Registration Rights Agreement and the Indenture have been duly authorized, executed and delivered by the Company and the California Guarantors and constitute legal, valid and binding obligations of the Company Guarantor and its subsidiaries, enforceable against taken as a whole, whether or not arising from transactions in the Company ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or supplement thereto). All references in these Sections 6(c) and 6(d) to the Final Memorandum include any amendment or supplement thereto at the date of the applicable letter.
(e) At the Execution Time and at the Closing Date, the Issuer shall have requested and caused each of Deloitte & Touche LLP and Ernst & Young LLP to furnish to the Representative comfort letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representative.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Final Memorandum (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Issuer and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Final Memorandum (exclusive of any amendment or 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 in the Final Memorandum (exclusive of any amendment or supplement thereto).
(g) The Securities shall have been designated as PORTAL-eligible securities in accordance with their termsthe rules and regulations of the NASD, except the Dollar Notes shall be eligible for clearance and settlement through The Depository Trust Company and the Pound Notes shall be eligible for clearance and settlement through the Euroclear System and Clearstream Banking S.A.
(h) Prior to the Closing Date, the Issuer shall have furnished to the Representative such further information, certificates and documents as the same Representative may be limited reasonably request.
(i) On the Closing Date/concurrently with the Closing, the Issuer shall have furnished to the Representative evidence satisfactory to the Representative of the cancellation of the Existing STT Notes and the termination of the STT Bridge Facility.
(j) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded the debt securities of either the Issuer, the Guarantor or Global Crossing Limited by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (Aii) applicable bankruptcyno such organization shall have publicly announced that it has under surveillance or review, insolvencywith possible negative implications, reorganizationits rating of any of the debt securities of the Issuer, moratorium the Guarantor or other laws affecting creditors' rights generally, including without limitation Global Crossing Limited. If any of the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith conditions specified in this Section 6 shall not have been fulfilled when and fair dealingas provided in this Agreement, or (C) other customary exceptions specified by such counsel if any of the opinions and certificates mentioned above or elsewhere in their opinion and this Agreement shall not be reasonably satisfactory in form and substance to Counsel the Representative and counsel for the Initial Purchaser;
(vii) the Notes have been duly authorized and, when executed this Agreement and authenticated in accordance with the provisions all obligations of the Indenture and delivered to and paid for by the Initial Purchaser pursuant to this Agreementhereunder may be cancelled at, will constitute legalor at any time prior to, valid and binding obligations the Closing Date by the Representative. Notice of the Company and the Guarantors entitled such cancellation shall be given to the benefits Issuer in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of the Indenture and enforceable against the Company and the Guarantors in accordance with their terms, except as the same may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser;
(viii) , at Augustine House, 0 X Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX, on the Guarantees executed by the California Guarantors have been duly authorized and, when executed in accordance with the provisions of the Indenture, all of the Guarantees will constitute legal, valid and binding obligations of the Guarantors entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms, except as may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser;
(ix) the statements set forth under the headings "Acquisition of Xxxxxx", "Description of Senior Notes", "Consent Solicitation", "Description ofClosing Date.
Appears in 1 contract
Samples: Purchase Agreement (Global Crossing Uk Telecommunications LTD)
Conditions to the Obligations of the Initial Purchaser. The obligations of the Initial Purchaser to purchase the Notes Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company Issuer and the Parent Guarantor contained herein at the date Execution Time and time that this Agreement is executed and delivered by the parties hereto (the "Execution Time"), and at the Closing Date as specified in Section 7(g)Date, to the accuracy in all material respects of the statements of the Company Issuer and the Parent Guarantor made in any certificates delivered pursuant to the provisions hereof, to the performance by each of the Company Issuer and the Parent Guarantor of their its respective obligations hereunder at or prior to the Closing Date and to the following additional conditions:
(a) The Company Issuer shall have entered into a Registration Rights Agreement with requested and caused (i) Xxxxxx & Xxxxxxx, counsel for the Issuer, to furnish to the Initial Purchaser substantially its opinions, dated the Closing Date and addressed to the Initial Purchaser in the form attached set forth in Exhibits A and B hereto as and (ii) Xxxxxxx Xxxxx, Regional General Counsel for the Parent Guarantor, to furnish to the Initial Purchaser his opinion, dated the Closing Date and addressed to the Initial Purchaser in the form set forth in Exhibit A.C hereto.
(b) The Company Initial Purchaser shall have received from Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date and addressed to the Initial Purchaser, with respect to the issuance and sale of the Securities, the Supplemental Indenture, the Registration Rights Agreement, the Pricing Disclosure Package, Final Prospectus (as amended or supplemented at the Closing Date) and other related matters as the Initial Purchaser may reasonably require, and the Trustee Issuer shall have entered into furnished to such counsel such documents as they request for the Indenturepurpose of enabling them to pass upon such matters.
(c) The Company Issuer shall have furnished to the Initial Purchaser a certificate of the opinion of XxxxxxIssuer, signed by (x) Xxxx & Xxxxxxxx, L.L.P., Counsel for the CompanyXxxxxxx and (y) Xxxxxxx Xxxxx, dated the Closing Date, subject to customary qualifications and exceptions reasonably acceptable to Counsel for the Initial Purchaser, substantially to the effect that the signers of such certificate have carefully examined the Pricing Disclosure Package and the Final Prospectus, any amendment or supplement to the Pricing Disclosure Package and the Final Prospectus and this Agreement and that:
(i) the Company is a corporation validly existing representations and warranties of the Issuer in good standing under this Agreement are true and correct on and as of the laws of California Closing Date with the same effect as if made on the Closing Date, and is duly qualified the Issuer has complied with all the agreements and satisfied all the conditions on its part to do business as a foreign corporation and is in good standing under be performed or satisfied hereunder at or prior to the laws of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions in which the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect;Closing Date; and
(ii) each since the date of the Guarantors organized under the laws most recent financial statements of the State Parent Guarantor included in the Pricing Disclosure Package and the Final Prospectus (in each case exclusive of California any amendment or supplement thereto), there has been no material adverse change in the condition (the "California Guarantors") is a corporation validly existing and in good standing under the laws financial or otherwise), prospects, earnings, business or properties of the jurisdiction Issuer, whether or not arising from transactions in which it is chartered or organized and is duly qualified to do business as a foreign corporation and is in good standing under the laws ordinary course of each jurisdiction which requires such qualification wherein it owns or leases properties or conducts business, except in such jurisdictions in which the failure to so qualify, singly or in the aggregate, would not have a Material Adverse Effect;
(iii) the Company has the authorized, issued and outstanding capitalization as set forth in the Final Memorandum under the caption "Capitalization." All of the issued shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable and were not, to the best of such counsel's knowledge, issued in violation of any preemptive or similar rights;
(iv) the issued shares of capital stock of each of the California Guarantors have been duly authorized and validly issued, are fully paid and nonassessable and, the issued shares of capital stock of each of the Guarantors, except for directors' qualifying shares and except as otherwise set forth in or contemplated by in the Pricing Disclosure Package and the Final Memorandum are owned Prospectus (in each case exclusive of record any amendment or supplement thereto).
(d) The Parent Guarantor shall have furnished to the Initial Purchaser a certificate of the Parent Guarantor, signed by (x) Xxxx Xxxxxxx and beneficially by (y) Xxxxxxx Xxxxx, dated the Company, either directly or through wholly owned subsidiaries, free and clearClosing Date, to the best effect that the signers of such counsel's knowledgecertificate have carefully examined the Pricing Disclosure Package and the Final Prospectus, any amendment or supplement to the Pricing Disclosure Package and the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Parent Guarantor in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Parent Guarantor has complied with all the agreements and satisfied all 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 most recent financial statements of the Parent Guarantor included in the Pricing Disclosure Package and the Final Prospectus and the date of the most recent financial statements of Fibernet included in the Pricing Disclosure Package and the Final Prospectus (in each case exclusive of any pledgeamendment or supplement thereto), lien, encumbrance, security interest, restriction on voting or transfer, preemptive rights or other defect or claim of any third party;
(v) this Agreement there has been duly authorizedno material adverse change in the condition (financial or otherwise), executed and delivered by the Company;
(vi) each prospects, earnings, business or properties of the Registration Rights Agreement and the Indenture have been duly authorized, executed and delivered by the Company and the California Guarantors and constitute legal, valid and binding obligations of the Company Parent Guarantor and its subsidiaries, enforceable against taken as a whole, whether or not arising from transactions in the Company in accordance with their termsordinary course of business, except as set forth in or contemplated in the same may be limited by Pricing Disclosure Package and the Final Prospectus (Aexclusive of any amendment or supplement thereto). All references in these Sections 6(c) and 6(d) to the Pricing Disclosure Package or the Final Prospectus include any amendment or supplement thereto at the date of the applicable bankruptcyletter.
(e) At the Execution Time and at the Closing Date, insolvencythe Parent Guarantor shall have requested and caused each of Ernst & Young LLP and Deloitte & Touche LLP to furnish to the Initial Purchaser comfort letters, reorganizationdated respectively as of the Execution Time and as of the Closing Date, moratorium in form and substance satisfactory to the Initial Purchaser.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Pricing Disclosure Package and the Final Prospectus (in each case exclusive of any amendment or other laws supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting creditors' rights generallythe condition (financial or otherwise), including without limitation prospects, earnings, business or properties of the Parent Guarantor and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Pricing Disclosure Package and the Final Prospectus (in each case exclusive of any amendment or supplement thereto), the effect of statutory which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Initial Purchaser, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated in the Pricing Disclosure Package and the Final Prospectus (in each case exclusive of any amendment or supplement thereto).
(g) The Notes shall be eligible for clearance and settlement through the Euroclear System and Clearstream Banking S.A.
(h) Prior to the Closing Date, the Issuer shall have furnished to the Initial Purchaser such further information, certificates and documents as the Initial Purchaser may reasonably request.
(i) The board of directors of each of the Parent Guarantor and Fibernet shall have completed all necessary or advisable corporate actions related to the consummation of the Acquisition (including the completion of whitewash procedures and any other laws regarding fraudulent conveyances corporate action necessary to facilitate the Acquisition) save for the adoption of the board resolutions of the Parent Guarantor relating to the whitewash procedures and the execution of the Share Purchase Agreement.
(j) On or transfersafter the date hereof (i) no downgrading shall have occurred in the rating accorded the debt securities of either the Issuer, preferential transfers the Parent Guarantor or distributions Global Crossing Limited by corporations any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the debt securities of the Issuer, the Parent Guarantor or Global Crossing Limited.
(k) There shall be no existing breach or default or Event of Default by the Issuer or Parent Guarantor under the Indenture or any notes issued thereunder.
(l) On or before the Closing Date, the Issuer and the Parent Guarantor shall have furnished to shareholdersthe Initial Purchaser and counsel for the Initial Purchaser such further documents, (B) general principles certificates, letters and schedules or instruments, including one or more certificates of equitythe Issuer and the Parent Guarantor relating to the business, whether considered at law or at equitycorporate, includinglegal and financial affairs of the Issuer and the Parent Guarantor, without limitation, concepts as as they shall have heretofore reasonably requested from the Parent Guarantor. If any of materiality, reasonableness, good faith the conditions specified in this Section 6 shall not have been fulfilled when and fair dealingas provided in this Agreement, or (C) other customary exceptions specified by such counsel if any of the opinions and certificates mentioned above or elsewhere in their opinion and this Agreement shall not be reasonably satisfactory in form and substance to Counsel the Initial Purchaser and counsel for the Initial Purchaser;
(vii) the Notes have been duly authorized and, when executed this Agreement and authenticated in accordance with the provisions all obligations of the Indenture and delivered to and paid for Initial Purchaser hereunder may be cancelled at, or at any time prior to, the Closing Date by the Initial Purchaser pursuant to this Agreement, will constitute legal, valid and binding obligations Purchaser. Notice of the Company and the Guarantors entitled such cancellation shall be given to the benefits Issuer in writing or by facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of the Indenture and enforceable against the Company and the Guarantors in accordance with their terms, except as the same may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser;
(viii) , at Augustine House, 6A Austin Friars, London EC2N 2HA, on the Guarantees executed by the California Guarantors have been duly authorized and, when executed in accordance with the provisions of the Indenture, all of the Guarantees will constitute legal, valid and binding obligations of the Guarantors entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms, except as may be limited by (A) applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally, including without limitation the effect of statutory or other laws regarding fraudulent conveyances or transfers, preferential transfers or distributions by corporations to shareholders, (B) general principles of equity, whether considered at law or at equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, or (C) other customary exceptions specified by such counsel in their opinion and reasonably acceptable to Counsel for the Initial Purchaser;
(ix) the statements set forth under the headings "Acquisition of Xxxxxx", "Description of Senior Notes", "Consent Solicitation", "Description ofClosing Date.
Appears in 1 contract
Samples: Purchase Agreement (Global Crossing (UK) Finance PLC)
