Conditions to the Obligations of the Initial Purchaser. The obligations of the Initial Purchaser to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time (as defined below), the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their respective obligations hereunder and to the following additional conditions: (a) The Company and the Guarantors shall have requested and caused Xxxxxx & Xxxxxxx LLP, counsel for the Company and the Guarantors, to have furnished to the Initial Purchaser their opinion and negative assurance letters, each dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex A-1 and Annex A-2, respectively. (b) The Company and the Guarantors shall have requested and caused the Executive Vice President, General Counsel & Corporate Secretary of the Company and the Guarantors, to have furnished to the Initial Purchaser her opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex B. (c) The Company and the Guarantors shall have requested and caused Xxxxxxx Xxxx & Xxxxxxx Limited, special Bermuda counsel for the Company, to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex C. (d) The Company and the Guarantors shall have requested and caused Xxxxxxxx, special Ireland counsel for the Parent Guarantor, to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex D. (e) The Company and the Guarantors shall have requested and caused PwC Switzerland, special advisor for the Parent Guarantor to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex E. (f) The Initial Purchaser shall have received from Xxxxxx & Xxxxxx L.L.P., counsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date, and addressed to the Initial Purchaser, with respect to such matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (g) The Initial Purchaser shall have received from Xxxxxxx (Bermuda) Limited, special Bermuda 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 Pricing Disclosure Package, the Final Memorandum (together with any supplement thereto) and other related matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (h) The Initial Purchaser shall have received from A&L Goodbody, special Ireland 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 Pricing Disclosure Package, the Final Memorandum (together with any supplement thereto) and other related matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (i) The Company and the Guarantors shall have furnished to the Initial Purchaser a certificate of the Company and the Guarantors, signed by the Executive Vice President and Chief Financial Officer of the Company and by the Chairman of the Board or the President and the principal financial or accounting officer of the Guarantors, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Pricing Disclosure Package, the Final Memorandum and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that: (i) the representations and warranties of the Company and the Guarantors 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 that the Company and each Guarantor has materially complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) since the date of the most recent financial statements included in the Pricing Disclosure Package and the Final Memorandum (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Guarantors and their respective 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 Memorandum (exclusive of any supplement thereto). (j) Immediately following the Execution Time, the Initial Purchaser shall receive from KPMG LLP a letter, dated as of the date of this Agreement, and addressed to the Initial Purchaser, in form and substance satisfactory to the Initial Purchaser, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Initial Purchaser with respect to the financial statements and certain financial information relating to the Parent Guarantor and its subsidiaries contained in the Pricing Disclosure Package and other customary matters. (k) On the Closing Date, the Initial Purchaser shall have received from KPMG LLP a letter, dated as of the Closing Date, and addressed to the Initial Purchaser, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (j) of this Section, except that the cut-off date for certain procedures performed by them shall be a date not more than two Business Days prior to the Closing Date, and providing information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Parent Guarantor and its subsidiaries contained in the Final Memorandum. (l) The Company shall have received and provided to the Initial Purchaser an assurance from the Minister of Finance under the Exempted Undertakings Tax Protection Act, 1966 that, in the event of there being enacted in Bermuda any legislation imposing tax computed on profits or income or computed on any capital asset, gain or appreciation, or any tax in the nature of estate duty or inheritance tax, then the imposition of any such tax shall not until 31 March 2035 be applicable to the Company or any of its operations or its shares, debentures or other obligations, except insofar as such tax applies to persons ordinarily resident in Bermuda or to tax payable in accordance with the provisions of the Land Tax Xxx 0000 or otherwise payable in relation to any land leased to the Company. (m) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Pricing Disclosure Package 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 (j) 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, the Guarantors and their respective 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 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 by the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto). (n) [Reserved.] (o) For the purpose of effecting delivery of the Securities in book-entry form, the Company agrees to issue, in the name of Cede & Co., such Securities being issued to the Initial Purchaser and to instruct Cede & Co. to deliver the book-entry interest in such Securities to broker accounts as directed by the Initial Purchaser. (p) The Company and the Guarantors shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchaser, and the Initial Purchaser shall have received such executed counterparts. The Company and the Guarantors shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, and the Initial Purchaser shall have received such executed counterparts. (q) Prior to the Closing Date, the Company and the Guarantors 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, this Agreement and all obligations of the Initial Purchaser hereunder may be canceled on, or at any time prior to, the Closing Date by the Initial Purchaser. Notice of such cancellation shall be given to the Company and the Guarantors in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx & Xxxxxxx LLP, special counsel to the Company and the Guarantors, at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Initial Purchaser. The obligations of the Initial Purchaser to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers contained herein as of at the Execution Time (as defined below), and on the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Guarantors Issuers made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantors Issuers of their respective obligations hereunder and to the following additional conditions:
(a) The Company and Akin, Gump, Strauss, Hauer & Feld L.L.P., xxxxsel xxx the Guarantors Issuers, shall have requested and caused Xxxxxx & Xxxxxxx LLP, counsel for the Company and the Guarantors, to have furnished to the Initial Purchaser their opinion and negative assurance lettersits opinion, each dated the Closing Date, Date and addressed to the Initial Purchaser, to substantially in the effect set forth in form of Annex A-1 and Annex A-2, respectivelyA hereto.
(b) The Company and Quinlan, Bloom & Douxxxx, X.C., counsxx xxx the Guarantors Issuers, shall have requested and caused the Executive Vice President, General Counsel & Corporate Secretary of the Company and the Guarantors, to have furnished to the Initial Purchaser her its opinion, dated the Closing Date, Date and addressed to the Initial Purchaser, to substantially in the effect set forth in Annex B.form of Exhibit B hereto.
(c) The Company and the Guarantors shall have requested and caused Xxxxxxx Xxxx & Xxxxxxx Limited, special Bermuda counsel for the Company, to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex C.
(d) The Company and the Guarantors shall have requested and caused Xxxxxxxx, special Ireland counsel for the Parent Guarantor, to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex D.
(e) The Company and the Guarantors shall have requested and caused PwC Switzerland, special advisor for the Parent Guarantor to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex E.
(f) The Initial Purchaser shall have received from Xxxxxx Cahill Gordon & Xxxxxx L.L.P.Reinxxx XXX, counsel for the xxxxsel xxx xxe Initial Purchaser, such opinion or opinionsits opinion, dated the Closing Date, and addressed to the Initial Purchaser, with respect to such matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Initial Purchaser shall have received from Xxxxxxx (Bermuda) Limited, special Bermuda counsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date, Date and addressed to the Initial Purchaser, with respect to the issuance and sale of the Securities, the Security Documents, the Indenture, the Pricing Disclosure PackageRegistration Rights Agreement, the Final Memorandum (together with any supplement theretoas amended or supplemented at the Closing Date) and other related matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors Issuers shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(hd) The Initial Purchaser shall have received from A&L Goodbody, special Ireland 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 Each of the Securities, the Indenture, the Pricing Disclosure Package, the Final Memorandum (together with any supplement thereto) and other related matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) The Company and the Guarantors Issuers shall have furnished to the Initial Purchaser a certificate of the Company and the Guarantorssuch Issuer, signed by the Executive Vice President chief executive officer (or an equivalent thereof) and Chief Financial Officer any of the Company and by the Chairman of the Board chief financial officer, general counsel, treasurer, secretary or the President and the principal financial or accounting officer of the Guarantorssuch Issuer, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Pricing Disclosure PackageFinal Memorandum, any amendment or supplement to the Final Memorandum and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company and the Guarantors Issuers in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and that the Company Date, and each Guarantor Issuer has materially 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 Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse effect on the condition (financial event or otherwise), prospects, earnings, business or properties of the Company, the Guarantors and their respective subsidiaries, taken as occurrence that would reasonably be expected to result in a whole, Material Adverse Effect 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 by the Final Memorandum (exclusive of any amendment or supplement thereto); and
(iii) to the best knowledge of such Issuer, no action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental agency that would, as of the Closing Date, prevent the issuance of the Securities. No action, suit or proceeding had been commenced and is pending against or affecting or, to the best knowledge of such Issuer, threatened against any Issuer or the Tribe before any court or arbitrator or any governmental body, agency or official that, if adversely determined, would reasonably be expected to result in a Material Adverse Effect.
(je) Immediately following At the Execution Time, the Initial Purchaser shall receive have received from KPMG Grant Thornton LLP a letterxxxxxx, dated xxxxx as of the date of this Agreement, and addressed to the Initial PurchaserExecution Time, in form and substance satisfactory to the Initial Purchaser, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations thereunder, containing statements and information of the type ordinarily included in accountants’ “an accountant's "comfort letters” " to Initial Purchaser initial purchasers, delivered according to Statement of Auditing Standards Nos. 72 and 76 (or any successor bulletins), with respect to the audited and unaudited financial statements and certain financial information relating to the Parent Guarantor and its subsidiaries contained in the Pricing Disclosure Package and other customary mattersFinal Memorandum.
(kf) On At the Closing Date, the Initial Purchaser shall have received from KPMG Grant Thornton LLP a "xxxxx-xxxx xomfort letter, ," dated as of the Closing Date, and addressed . References to the Initial Purchaser, to the effect that they reaffirm the statements made Final Memorandum in the letter furnished pursuant to subsection paragraphs (je) and (f) of this Section, except that Section 6 include any amendment or supplement thereto at the cut-off date for certain procedures performed by them shall be a date not more than two Business Days prior to the Closing Date, and providing information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Parent Guarantor and its subsidiaries contained in the Final Memorandumapplicable letter.
(l) The Company shall have received and provided to the Initial Purchaser an assurance from the Minister of Finance under the Exempted Undertakings Tax Protection Act, 1966 that, in the event of there being enacted in Bermuda any legislation imposing tax computed on profits or income or computed on any capital asset, gain or appreciation, or any tax in the nature of estate duty or inheritance tax, then the imposition of any such tax shall not until 31 March 2035 be applicable to the Company or any of its operations or its shares, debentures or other obligations, except insofar as such tax applies to persons ordinarily resident in Bermuda or to tax payable in accordance with the provisions of the Land Tax Xxx 0000 or otherwise payable in relation to any land leased to the Company.
(mg) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Pricing Disclosure Package 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 (je) 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 CompanyIssuers, the Guarantors and their respective 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 by 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 Initial Purchaser, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of market the Securities as contemplated by the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).
(nh) [ReservedAt the Closing Date, the Securities shall have been designated as PORTAL-eligible securities in accordance with the rules and regulations of the NASD, and the Securities shall be eligible for clearance and settlement through The Depository Trust Company.]
(oi) For Subsequent to the purpose Execution Time, there shall not have been any decrease in the rating of effecting delivery any of the Securities Issuers' debt 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 book-entry formany such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) At the Closing Date, the Company agrees to issue, in Issuers and the name of Cede & Co., such Securities being issued to Trustee shall have entered into the Indenture and the Initial Purchaser and to instruct Cede & Co. to deliver the book-entry interest in such Securities to broker accounts shall have received counterparts, conformed as directed by the Initial Purchaserexecuted, thereof.
(pk) The Company and Each of the Guarantors shall have executed and delivered the Indenture, a Guarantee in form and substance reasonably satisfactory to the Initial Purchaser, and the Initial Purchaser shall have received such executed counterparts. The Company , conformed as executed, thereof.
(l) At the Closing Date, the Issuers and the Guarantors Initial Purchaser shall have executed and delivered entered into the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, Agreement and the Initial Purchaser shall have received such executed counterparts, conformed as executed, thereof.
(qm) At the Closing Date, the Issuers, the Trustee and all other parties thereto, as applicable, shall have entered into the Security Documents and the Initial Purchaser received each of the fol- lowing document which shall be reasonably satisfactory in form and substance to the Initial Purchaser and its counsel, with respect to the Collateral:
(i) such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as shall be reasonably necessary in order for the owner or holder of the Collateral to grant the Lien contemplated by the Security Documents;
(ii) policies or certificates of insurance as required by the Security Documents, which policies or certificates shall bear endorsements of the character required pursuant to the Security Documents;
(iii) Uniform Commercial Code ("UCC"), judgment, tax lien and Intellectual Property searches confirming that the Collateral is subject to no Liens other than Permitted Liens; and
(iv) a certificate of the Issuers, signed on behalf of the Issuers by the President of the Tribe and its chief operating officer, to the effect that: (A) each Issuer has performed, in all material respects, all covenants and agreements described in this Section 6(m) and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder and (B) upon the execution of the Security Documents and filing of financing statements under the UCC in all required jurisdictions, the Trustee on behalf of the Trustee and holders of Notes will have a valid and perfected lien on the Collateral subject to no Liens, other than Permitted Liens.
(n) The Issuers shall have executed and delivered all other documents and taken all other actions necessary or appropriate to grant in favor of the Trustee, for the benefit of the holders of the Notes, a valid and perfected first priority security interest in the Collateral.
(o) The Tribe shall have delivered to the U.S. Department of Agriculture, Rural Housing Service (the "USDA") the complete package of documents and information required to be delivered to it in order to commence its Pre-Guarantee Audit as described in Section 14(10) of the conditional commitment for guarantee dated September 18, 2003 between the Tribe and the USDA (the "GUARANTEE") of the loan to be made by First National Bank Alamagordo ("FNBA") pursuant to the terms of the commitment letter dated September 4, 2003 between the Tribe and FNBA, as amended, including a fully executed and binding loan agreement between the Tribe and FNBA and all other ancillary documents, certificates, forms, information and other materials required to be delivered in connection therewith and in connection with obtaining the Guarantee.
(p) Prior to the Closing Date, the Company and the Guarantors Issuers 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 in all material respects 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 in all material respects reasonably satisfactory in form and substance to the Initial Purchaser and counsel for the Initial Purchaser, this Agreement and all obligations of the Initial Purchaser hereunder may be canceled oncancelled at, or at any time prior to, the Closing Date by the Initial Purchaser. Notice of such cancellation shall be given to the Company and the Guarantors Issuers in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall will be delivered at the office of Xxxxxx & Xxxxxxx LLP, special counsel to for the Company and the GuarantorsInitial Purchaser, at 000 80 Pine Street, New Xxxx, Xxx Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, on the Closing Datexx xxx Xxxxxxx Xxxe.
Appears in 1 contract
Samples: Purchase Agreement (Inn of the Mountain Gods Resorts & Casino)
Conditions to the Obligations of the Initial Purchaser. The obligations of the Initial Purchaser to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers contained herein as of at the Execution Time (as defined below), and the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Guarantors Issuers made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantors Issuers of their respective obligations hereunder and to the following additional conditions:
(a) The Company and the Guarantors shall have requested and caused Xxxxxx & Xxxxxxx LLP, counsel for the Company and the Guarantors, to have furnished to the Initial Purchaser their opinion and negative assurance letters, each dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex A-1 and Annex A-2, respectively.
(b) The Company and the Guarantors shall have requested and caused the Executive Vice President, General Counsel & Corporate Secretary of the Company and the Guarantors, to have furnished to the Initial Purchaser her opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex B.
(c) The Company and the Guarantors shall have requested and caused Xxxxxxx Xxxx & Xxxxxxx Limited, special Bermuda counsel for the Company, to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex C.
(d) The Company and the Guarantors shall have requested and caused Xxxxxxxx, special Ireland counsel for the Parent Guarantor, to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex D.
(e) The Company and the Guarantors shall have requested and caused PwC Switzerland, special advisor for the Parent Guarantor to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex E.
(f) : The Initial Purchaser shall have received from Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, counsel for the Company, an opinion, dated the Closing Date and addressed to the Initial Purchaser, substantially in the form of Annex A attached hereto. The Initial Purchaser shall have 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 L.L.P.Xxxxxx & Xxxxxxx LLP, counsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date, Date and addressed to the Initial Purchaser, with respect to such the issuance and sale of the Securities, the Indenture, the Registration Rights Agreement, the Disclosure Package, the Final Offering Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Initial Purchaser may reasonably require, and each of the Company and the Guarantors Issuers shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Initial Purchaser shall have received from Xxxxxxx (Bermuda) Limited, special Bermuda 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 Pricing Disclosure Package, the Final Memorandum (together with any supplement thereto) and other related matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(h) The Initial Purchaser shall have received from A&L Goodbody, special Ireland 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 Pricing Disclosure Package, the Final Memorandum (together with any supplement thereto) and other related matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) . The Company and the Guarantors shall have furnished to the Initial Purchaser a certificate of the Company and the GuarantorsCompany, signed by the Executive Vice President and Chief Financial Officer of the Company and by (x) the Chairman of the Board or the President and (y) the principal financial or accounting officer of the GuarantorsCompany, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Pricing Disclosure Package, Package and the Final Memorandum and Offering Memorandum, any amendments or supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) : the representations and warranties of the Company and the Guarantors each 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 that the Company Date, and each Guarantor Issuer has materially 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) and since the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto), there has been no material adverse effect on change to the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Guarantors Company and their respective 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 Memorandum (exclusive of any supplement thereto).
(j) Immediately following Offering Memorandum. At the Execution TimeTime and at the Closing Date, the Issuers shall have requested and caused BDO Xxxxxxx, LLP to furnish to the Initial Purchaser shall receive from KPMG LLP Purchaser, a “comfort” letter, dated as of the date Execution Time and a bring-down “comfort letter”, dated as of this Agreement, and addressed to the Initial PurchaserClosing Date, in form and substance satisfactory to the Initial Purchaser, containing statements and information confirming that they are independent accountants within the meaning of the type ordinarily included in accountants’ “comfort letters” to Initial Purchaser Exchange Act and within the meaning of the rules of the Public Company Accounting Oversight Board and confirming certain matters with respect to the audited and unaudited financial statements and certain other financial and accounting information relating to the Parent Guarantor and its subsidiaries contained in the Pricing Disclosure Package and other customary matters.
(k) On the Closing DateFinal Offering Memorandum, including any amendment or supplement thereto at the Initial Purchaser shall have received from KPMG LLP a letter, dated as date of the Closing Date, and addressed to the Initial Purchaser, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (j) of this Section, except that the cut-off date for certain procedures performed by them shall be a date not more than two Business Days prior to the Closing Date, and providing information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Parent Guarantor and its subsidiaries contained in the Final Memorandum.
(l) The Company shall have received and provided to the Initial Purchaser an assurance from the Minister of Finance under the Exempted Undertakings Tax Protection Act, 1966 that, in the event of there being enacted in Bermuda any legislation imposing tax computed on profits or income or computed on any capital asset, gain or appreciation, or any tax in the nature of estate duty or inheritance tax, then the imposition of any such tax shall not until 31 March 2035 be applicable to the Company or any of its operations or its shares, debentures or other obligations, except insofar as such tax applies to persons ordinarily resident in Bermuda or to tax payable in accordance with the provisions of the Land Tax Xxx 0000 or otherwise payable in relation to any land leased to the Company.
(m) letter. Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto)Offering Memorandum, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (je) of this Section 6, ; or (ii) any change, or any development involving a prospective change, change in or affecting the condition (financial or otherwise), earnings, business or properties of the Company, the Guarantors Company and their respective 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 Memorandum (exclusive of any amendment or supplement thereto) Offering Memorandum, 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 by in the Pricing Disclosure Package and the Final Memorandum (exclusive Offering Memorandum. The Securities shall have been designated as PORTAL-eligible securities in accordance with the 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, there shall not have been any decrease in the rating of any amendment or supplement thereto).
(n) [Reserved.]
(o) For the purpose of effecting delivery of the Securities 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 book-entry form, any such rating or of a possible change in any such rating that does not indicate the Company agrees to issue, in direction of the name of Cede & Co., such Securities being issued to the Initial Purchaser and to instruct Cede & Co. to deliver the book-entry interest in such Securities to broker accounts as directed by the Initial Purchaser.
(p) The Company and the Guarantors shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchaser, and the Initial Purchaser shall have received such executed counterpartspossible change. The Company and the Guarantors shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, and the Initial Purchaser shall have received such executed counterparts.
(q) Prior to the Closing Date, the Company and the Guarantors 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, this Agreement and all obligations of the Initial Purchaser hereunder may be canceled oncancelled at, or at any time prior to, the Closing Date by the Initial Purchaser. Notice of such cancellation shall be given to the Company and the Guarantors in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall will be delivered at the office of Xxxxxx Xxxxxx & Xxxxxxx LLP, special counsel to for the Company and the GuarantorsInitial Purchaser, at 000 00 Xxxx Xxxxxx, Xxxxx 0000Xxx Xxxx, Xxxxxxx, Xxxxx Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Initial Purchaser. The obligations of the Initial Purchaser to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time (as defined below), the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantors of their respective obligations hereunder and to the following additional conditions:
(a) The Company and the Guarantors shall have requested and caused Xxxxxx & Xxxxxxx LLP, counsel for the Company and the Guarantors, to have furnished to the Initial Purchaser their opinion and negative assurance letters, each dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex A-1 and Annex A-2, respectively.
(b) The Company and the Guarantors shall have requested and caused the Executive Vice President, General Counsel & Corporate Secretary of the Company and the Guarantors, to have furnished to the Initial Purchaser her opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex B.
(c) The Company and the Guarantors shall have requested and caused Xxxxxxx Xxxx & Xxxxxxx Limited, special Bermuda counsel for the Company, to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex C.
(d) The Company and the Guarantors shall have requested and caused Xxxxxxxx, special Ireland counsel for the Parent Guarantor, to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex D.
(e) The Company and the Guarantors shall have requested and caused PwC Switzerland, special advisor for the Parent Guarantor to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex E.
(f) The Initial Purchaser shall have received from Xxxxxx & Xxxxxx L.L.P., counsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date, and addressed to the Initial Purchaser, with respect to such matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Initial Purchaser shall have received from Xxxxxxx (Bermuda) Limited, special Bermuda 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 Pricing Disclosure Package, the Final Memorandum (together with any supplement thereto) and other related matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(h) The Initial Purchaser shall have received from A&L Goodbody, special Ireland 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 Pricing Disclosure Package, the Final Memorandum (together with any supplement thereto) and other related matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) The Company and the Guarantors shall have furnished to the Initial Purchaser a certificate of the Company and the Guarantors, signed by the Executive Vice President and Chief Financial Officer of the Company and by the Chairman of the Board or the President and the principal financial or accounting officer of the Guarantors, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Pricing Disclosure Package, the Final Memorandum and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and that:
(i) 1. the representations and warranties of the Company and the Guarantors 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 that the Company and each Guarantor has materially complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) 2. since the date of the most recent financial statements included in the Pricing Disclosure Package and the Final Memorandum (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Guarantors and their respective 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 Memorandum (exclusive of any supplement thereto).
(j) Immediately following the Execution Time, the Initial Purchaser shall receive from KPMG LLP a letter, dated as of the date of this Agreement, and addressed to the Initial Purchaser, in form and substance satisfactory to the Initial Purchaser, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Initial Purchaser with respect to the financial statements and certain financial information relating to the Parent Guarantor and its subsidiaries contained in the Pricing Disclosure Package and other customary matters.
(k) On the Closing Date, the Initial Purchaser shall have received from KPMG LLP a letter, dated as of the Closing Date, and addressed to the Initial Purchaser, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (j) of this Section, except that the cut-off date for certain procedures performed by them shall be a date not more than two Business Days prior to the Closing Date, and providing information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Parent Guarantor and its subsidiaries contained in the Final Memorandum.
(l) The Company shall have received and provided to the Initial Purchaser an assurance from the Minister of Finance under the Exempted Undertakings Tax Protection Act, 1966 that, in the event of there being enacted in Bermuda any legislation imposing tax computed on profits or income or computed on any capital asset, gain or appreciation, or any tax in the nature of estate duty or inheritance tax, then the imposition of any such tax shall not until 31 March 2035 be applicable to the Company or any of its operations or its shares, debentures or other obligations, except insofar as such tax applies to persons ordinarily resident in Bermuda or to tax payable in accordance with the provisions of the Land Tax Xxx 0000 or otherwise payable in relation to any land leased to the Company.
(m) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Pricing Disclosure Package 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 (j) 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, the Guarantors and their respective 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 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 by the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).
(n) [Reserved.]
(o) For the purpose of effecting delivery of the Securities in book-entry form, the Company agrees to issue, in the name of Cede & Co., such Securities being issued to the Initial Purchaser and to instruct Cede & Co. to deliver the book-entry interest in such Securities to broker accounts as directed by the Initial Purchaser.
(p) The Company and the Guarantors shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchaser, and the Initial Purchaser shall have received such executed counterparts. The Company and the Guarantors shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, and the Initial Purchaser shall have received such executed counterparts.
(q) Prior to the Closing Date, the Company and the Guarantors 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, this Agreement and all obligations of the Initial Purchaser hereunder may be canceled on, or at any time prior to, the Closing Date by the Initial Purchaser. Notice of such cancellation shall be given to the Company and the Guarantors in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx & Xxxxxxx LLP, special counsel to the Company and the Guarantors, at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Initial Purchaser. The obligations obligation of the Initial Purchaser to purchase the Securities Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Execution Time (as defined below), the Closing Date pursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereofherein, to the performance by the Company and the Guarantors in all material respects of their respective its obligations hereunder and to the following additional conditions:
(a) The Company Senior Executive Vice President and the Guarantors shall have requested and caused Xxxxxx & Xxxxxxx LLP, counsel for General Counsel of the Company and the Guarantors, to shall have furnished to the Initial Purchaser their opinion and negative assurance lettersan opinion, each dated the Closing Date, Date and addressed to the Initial Purchaser, in form and substance satisfactory to the Initial Purchaser, to the effect set forth in Annex A-1 and Annex A-2, respectivelyExhibit A hereto.
(b) The Company and the Guarantors shall have requested and caused the Executive Vice President, General Counsel & Corporate Secretary of the Company and the Guarantors, to have furnished to the Initial Purchaser her opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex B.
(c) The Company and the Guarantors shall have requested and caused Xxxxxxx Xxxx & Xxxxxxx Limited, special Bermuda counsel for the Company, to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex C.
(d) The Company and the Guarantors shall have requested and caused Xxxxxxxx, special Ireland counsel for the Parent Guarantor, to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex D.
(e) The Company and the Guarantors shall have requested and caused PwC Switzerland, special advisor for the Parent Guarantor to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex E.
(f) The Initial Purchaser shall have received from Xxxxxx Sxxxxxxx & Xxxxxx L.L.P.Cxxxxxxx LLP, counsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date, Date and addressed to the Initial Purchaser, with respect to such the issuance and sale of the Notes and other related matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(gc) The Initial Purchaser Notes shall have received from Xxxxxxx (Bermuda) Limited, special Bermuda counsel be eligible for the Initial Purchaser, such opinion or opinions, dated the Closing Date, clearance and addressed to the Initial Purchaser, with respect to the issuance and sale of the Securities, the Indenture, the Pricing Disclosure Package, the Final Memorandum (together with any supplement thereto) and other related matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matterssettlement through The Depository Trust Company.
(h) The Initial Purchaser shall have received from A&L Goodbody, special Ireland 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 Pricing Disclosure Package, the Final Memorandum (together with any supplement thereto) and other related matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(id) The Company and the Guarantors shall have furnished to the Initial Purchaser a certificate of the Company and the Guarantors, signed by the Executive Vice President and Chief Financial Officer of the Company and by the its Chairman of the Board or the its President or a Senior Vice President and the principal financial its Treasurer or accounting officer of the Guarantors, dated the Closing Date, an Assistant Treasurer stating that after reasonable investigation and to the effect that the signers best of such certificate have carefully examined the Pricing Disclosure Package, the Final Memorandum and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the Securities, and this Agreement and thattheir knowledge:
(i) the representations and warranties of the Company and the Guarantors in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and that Date;
(ii) the Company and each Guarantor has materially complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to on and as of the Closing Date with the same effect as if made on the Closing Date; and
(iiiii) since subsequent to the date of the most recent financial statements included in the Pricing Disclosure Package and the Final Memorandum (exclusive of any supplement thereto)Record, there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Guarantors and their respective subsidiaries, taken as a whole, whether or not arising from transactions change in the ordinary course of business, except as set forth in or contemplated in the Pricing Disclosure Package and the Final Memorandum (exclusive of any supplement thereto).
(j) Immediately following the Execution Time, the Initial Purchaser shall receive from KPMG LLP a letter, dated as of the date of this Agreement, and addressed to the Initial Purchaser, in form and substance satisfactory to the Initial Purchaser, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to Initial Purchaser with respect to the financial statements and certain financial information relating to the Parent Guarantor and its subsidiaries contained in the Pricing Disclosure Package and other customary matters.
(k) On the Closing Date, the Initial Purchaser shall have received from KPMG LLP a letter, dated as of the Closing Date, and addressed to the Initial Purchaser, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (j) of this Section, except that the cut-off date for certain procedures performed by them shall be a date not more than two Business Days prior to the Closing Date, and providing information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Parent Guarantor and its subsidiaries contained in the Final Memorandum.
(l) The Company shall have received and provided to the Initial Purchaser an assurance from the Minister of Finance under the Exempted Undertakings Tax Protection Act, 1966 that, in the event of there being enacted in Bermuda any legislation imposing tax computed on profits or income or computed on any capital asset, gain or appreciation, or any tax in the nature of estate duty or inheritance tax, then the imposition of any such tax shall not until 31 March 2035 be applicable to the Company or any of its operations or its shares, debentures or other obligations, except insofar as such tax applies to persons ordinarily resident in Bermuda or to tax payable in accordance with the provisions of the Land Tax Xxx 0000 or otherwise payable in relation to any land leased to the Company.
(m) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Pricing Disclosure Package 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 (j) 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, the Guarantors and their respective subsidiaries taken as a wholeCompany or its subsidiaries, whether or not arising from transactions in the ordinary course of business, business except as set forth in or contemplated in the Pricing Disclosure Package and 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 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 by the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto)Record.
(ne) [Reserved.]
(o) For At or before the purpose Closing Date, no order directed to any document comprising the Disclosure Record shall have been issued, and prior to that time no stop order proceeding shall have been initiated or threatened by the Commission and no challenge shall have been made by the Commission or its staff as to the accuracy or adequacy of effecting delivery any document comprising the Disclosure Record; and any request of the Securities in book-entry form, the Company agrees to issue, Commission for inclusion of additional information in the name of Cede & Co., such Securities being issued to the Initial Purchaser and to instruct Cede & Co. to deliver the book-entry interest in such Securities to broker accounts as directed by the Initial PurchaserDisclosure Record or otherwise shall have been complied with.
(pf) The Initial Purchaser shall not have discovered or disclosed to the Company on or prior to the Closing Date that the Disclosure Record contains an untrue statement of a fact which is material or omits to state a fact which is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(g) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Notes and all other legal matters relating to this Agreement and the Guarantors transactions contemplated hereby shall have executed and delivered the Indenturebe satisfactory in all respects to Sxxxxxxx & Cxxxxxxx LLP, in form and substance reasonably satisfactory to counsel for the Initial Purchaser, and the Initial Purchaser Company shall have received furnished to such executed counterparts. The counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(h) No order, consent, approval, authorization, registration or qualification of or with any governmental agency or body having jurisdiction over the Company or any of its properties is required for the issue and sale of the Guarantors shall have executed and delivered Notes or the Registration Rights consummation by the Company of the transactions contemplated by this Agreement, except such as have been, or will have been prior to the Closing Date, obtained under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Initial Purchaser. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Initial Purchaser, and the Initial Purchaser shall have received such executed counterparts.
(q) Prior to the Closing Date, the Company and the Guarantors 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, this Agreement and all obligations of the Initial Purchaser hereunder may be canceled onterminated at, or at any time prior to, the Closing Date by the Initial Purchaser. Notice of , and such cancellation termination shall be given without liability of any party to the Company any other party except as otherwise provided in Sections 7, 8 and the Guarantors in writing or by telephone or facsimile confirmed in writing10 hereof. The documents required to be delivered by this Section 6 shall will be delivered at the office offices of Xxxxxx Sxxxxxxx & Xxxxxxx Cxxxxxxx LLP, special counsel to the Company and the Guarantors, at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000Initial Purchaser, on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (At&t Inc.)
Conditions to the Obligations of the Initial Purchaser. The obligations of the Initial Purchaser to purchase the Securities Purchased Certificates shall be subject to to: (i) the accuracy of the representations and warranties on the part of each of the Company Seller and Wachovia contained herein as of the Execution Time (date hereof and as defined below), of the Closing Date pursuant to Section 3 hereofDate, to the accuracy of the statements of the Company and the Guarantors made in any certificates pursuant to the provisions hereof, to (ii) the performance by each of the Company Seller and the Guarantors Wachovia of their respective its obligations hereunder and to (iii) the following additional conditions:
(a) The Company and On the Guarantors shall have requested and caused Xxxxxx & Xxxxxxx LLPClosing Date, counsel for the Company and the Guarantors, to have furnished to the Initial Purchaser their opinion and negative assurance lettersshall have received:
(i) One or more opinions, each dated the Closing Date, of Dechert LLP, special counsel to the Seller, in form and addressed substance satisfactory to the Initial Purchaser, substantially to the effect set forth that:
(A) The Seller is a corporation in Annex A-1 good standing under the laws of the State of North Carolina and Annex A-2has the corporate power and authority to enter into and perform its obligations under each of the Pooling and Servicing Agreement, respectivelythe Mortgage Loan Purchase Agreements and this Agreement.
(B) Each of the Pooling and Servicing Agreement, the Mortgage Loan Purchase Agreements and this Agreement has been duly authorized, executed and delivered by the Seller.
(C) Each of (i) the Master Servicer Indemnification Agreement, dated as of May [ ], 2007, among the Seller, the Master Servicer and the Underwriters (the “Master Servicer Indemnification Agreement”), (ii) the Special Servicer Indemnification Agreement, dated as of May [ ], 2007, among the Seller, the Special Servicer and the Underwriters (the “Special Servicer Indemnification Agreement”) and (iii) the Trustee Indemnification Agreement, dated as of May [ ], 2007, among the Seller, the Trustee and the Underwriters (the “Trustee Indemnification Agreement” and, collectively with the Master Servicer Indemnification Agreement and the Special Servicer Indemnification Agreement, the “Indemnification Agreements”) has been duly authorized, executed and delivered by the Seller.
(D) Each of this Agreement, the Pooling and Servicing Agreement, the Indemnification Agreements and the Mortgage Loan Purchase Agreements, constitutes a legal, valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, receivership or other laws relating to or affecting creditors’ rights generally, and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and except that the enforcement of rights with respect to indemnification and contribution obligations and provisions (a) purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of set off, (b) The Company relating to submission to jurisdiction, venue or service of process, (c) relating to interest on interest provisions, or (d) relating to severability clauses, may be limited by applicable law or considerations of public policy.
(E) When they have been duly executed, countersigned and delivered in the Guarantors shall have requested manner contemplated in the Pooling and caused Servicing Agreement and paid for by the Executive Vice PresidentInitial Purchaser pursuant to this Agreement, General Counsel & Corporate Secretary the Purchased Certificates will be validly issued and outstanding and entitled to the benefits provided by the Pooling and Servicing Agreement.
(F) Assuming the accuracy of the Company representations and warranties in this Agreement and compliance with the Guarantorsterms and provisions of the Pooling and Servicing Agreement and this Agreement, to have furnished it is not necessary in connection with the offer and sale of the Purchased Certificates by the Seller to the Initial Purchaser her or by the Initial Purchaser to purchasers of the Purchased Certificates from the Initial Purchaser, under the circumstances contemplated by this Agreement and the Pooling and Servicing Agreement, to register the Purchased Certificates under the 1933 Act.
(G) The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended. The Trust Fund is not required to be registered under the Investment Company Act of 1940, as amended.
(H) The statements set forth in the Preliminary Memorandum and the Memorandum under the headings “MATERIAL FEDERAL INCOME TAX CONSEQUENCES” and “ERISA CONSIDERATIONS”, to the extent they apply to the Purchased Certificates and to the extent that they constitute matters of federal law or legal conclusions with respect thereto, are correct in all material respects with respect to those consequences or aspects that are discussed.
(I) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by the Seller of the transactions contemplated by the Pooling and Servicing Agreement and this Agreement, except for those consents, approvals, authorizations or orders that previously have been obtained, as may be required under federal or state securities laws, and such real estate filings as may be required in connection with the transfer of the Mortgage Loans and the other matters contemplated under the Pooling and Servicing Agreement.
(J) Neither the offer and sale of the Purchased Certificates nor the consummation of any other of the transactions contemplated in or the fulfillment of the terms of the Pooling and Servicing Agreement and this Agreement, will conflict with or result in a breach or violation of any term or provision of, or constitute a default (or an event which with the passing of time or notification, or both, would constitute a default) under, the articles of incorporation or by-laws of the Seller or, to such counsel’s knowledge, any indenture or other agreement or instrument to which the Seller is a party or by which it is bound, or to such counsel’s knowledge, any order of any State of North Carolina or federal court, regulatory body, administrative agency or governmental body having jurisdiction over the Seller.
(K) To the knowledge of such counsel, there are no actions, proceedings or investigations pending before or threatened by any court, administrative agency or other tribunal to which the Seller is a party or of which any of its properties is the subject (a) which, if adversely determined, would have a material adverse effect on the business or financial condition of the Seller, (b) asserting the invalidity of the Pooling and Servicing Agreement, this Agreement or the Purchased Certificates, (c) seeking to prevent the issuance of the Purchased Certificates or the consummation by the Seller of any of the transactions contemplated by the Pooling and Servicing Agreement or this Agreement or (d) which, if adversely determined, might materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of the Pooling and Servicing Agreement, this Agreement.
(L) Assuming compliance with all provisions of the Pooling and Servicing Agreement, for federal income tax purposes, (1) both the REMIC I and REMIC II will qualify as a real estate mortgage investment conduit (a “REMIC”) within the meaning of Sections 860A through 860G under the Code, (2) the Class R-I Certificates will represent the sole class of “residual interests” in REMIC I, (3) the Class R-II Certificates will be the sole class of “residual interests” in REMIC II, and the Class A-1, Class A-2, Class A-3, Class A-4, Class A-PB, Class A-5, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class S, Class X-P, Class X-C and Class X-W Certificates and the Class A-5FL Regular Interest will be the “regular interests” in REMIC II, and (4) the Class A-5FL Certificates will represent an undivided interest in a portion of the Trust Fund treated as a grantor trust under Subpart E, Part I of subchapter J of the Code, which includes the Class A-5FL Regular Interest, the Floating Rate Account and the beneficial interest in the Swap Contract and (5) the portion of the Trust Fund consisting of the Additional Interest and the Additional Interest Account (as such terms are defined in the Pooling and Servicing Agreement) will be treated as a grantor trust for federal income tax purposes under subpart E, Part I of subchapter J of the Code and the Class Z Certificates will represent an undivided beneficial interest in such grantor trust.
(ii) One or more opinions, dated the Closing Date, of Xxxx X. Xxxxxxxx, counsel to Wachovia, except with respect to the opinion referenced in Section 5(a)(ii)(C) which shall be provided by Dechert LLP, in form and substance satisfactory to the Initial Purchaser, substantially to the effect that:
(A) Wachovia is a national banking association validly existing under the laws of the United States of America and has the corporate power and authority to enter into and perform its obligations under this Agreement.
(B) This Agreement has been duly authorized, executed and delivered by Wachovia.
(C) This Agreement, upon due authorization, execution and delivery by the other parties thereto, will constitute a valid, legal and binding agreement of Wachovia, enforceable against Wachovia in accordance with its terms, except as enforceability may be limited by (a) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors generally, as they may be applied in the context of the insolvency of a national banking association, (b) general principles of equity, regardless of whether enforcement is sought in a proceeding in equity or at law, and (c) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of provisions which purport to provide indemnification from securities law liabilities.
(D) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by Wachovia and the Seller of the transactions contemplated by this Agreement except for those consents, approvals, authorizations or orders that previously have been obtained, as may be required under federal or state securities laws, and such real estate filings as may be required in connection with the transfer of the Mortgage Loans and the other matters contemplated under the Wachovia Mortgage Loan Purchase Agreement.
(E) The fulfillment of the terms of this Agreement will not conflict with or result in a breach or violation of any term or provision of, or constitute a default (or an event which, with the passing of time or notification, or both, would constitute a default) under, the articles of association or by-laws of Wachovia or, to such counsel’s knowledge, any indenture or other agreement or instrument to which Wachovia is a party or by which it is bound, or to such counsel’s knowledge, any order of any federal court, regulatory body, administrative agency or governmental body having jurisdiction over Wachovia.
(F) To the knowledge of such counsel, there are no actions, proceedings or investigations pending before or threatened by any court, administrative agency or other tribunal to which Wachovia is a party or of which any of its properties is the subject (a) which, if adversely determined, would have a material adverse effect on the business or financial condition of Wachovia, (b) asserting the invalidity of this Agreement, (c) seeking to prevent the consummation by Wachovia of any of the transactions contemplated by this Agreement or (d) which, if adversely determined, might materially and adversely affect the performance by Wachovia of its obligations under, or the validity or enforceability of this Agreement.
(iii) An opinion, dated the Closing Date, and addressed of counsel to the Initial Purchaser, reasonably acceptable to the effect set forth Initial Purchaser; and any opinions delivered in Annex B.connection with the transactions contemplated hereby to the Rating Agencies.
(cb) The Company and the Guarantors Seller shall have requested and caused Xxxxxxx Xxxx & Xxxxxxx Limited, special Bermuda counsel for the Company, to have furnished delivered to the Initial Purchaser their opiniona certificate, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex C.
(d) The Company and the Guarantors shall have requested and caused Xxxxxxxx, special Ireland counsel for the Parent Guarantor, to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex D.
(e) The Company and the Guarantors shall have requested and caused PwC Switzerland, special advisor for the Parent Guarantor to have furnished to the Initial Purchaser their opinion, dated the Closing Date, and addressed to the Initial Purchaser, to the effect set forth in Annex E.
(f) The Initial Purchaser shall have received from Xxxxxx & Xxxxxx L.L.P., counsel for the Initial Purchaser, such opinion or opinions, dated the Closing Date, and addressed to the Initial Purchaser, with respect to such matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Initial Purchaser shall have received from Xxxxxxx (Bermuda) Limited, special Bermuda 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 SecuritiesPresident, the Indenture, the Pricing Disclosure Package, the Final Memorandum (together with any supplement thereto) and other related matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(h) The Initial Purchaser shall have received from A&L Goodbody, special Ireland counsel for the Initial Purchaser such opinion a Senior Vice President or opinions, dated the Closing Date, and addressed to the Initial Purchaser, with respect to the issuance and sale a Vice President of the Securities, the Indenture, the Pricing Disclosure Package, the Final Memorandum (together with any supplement thereto) and other related matters as the Initial Purchaser may reasonably require, and the Company and the Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(i) The Company and the Guarantors shall have furnished to the Initial Purchaser a certificate of the Company and the Guarantors, signed by the Executive Vice President and Chief Financial Officer of the Company and by the Chairman of the Board or the President and the principal financial or accounting officer of the Guarantors, dated the Closing Date, Seller to the effect that the signers signer of such certificate have carefully examined the Pricing Disclosure Packagehas examined, or has relied upon an examination conducted by appropriate persons authorized by him, of this Agreement, the Final Memorandum Memorandum, the Pooling and any supplements or amendments thereto, as well as each electronic road show used in connection with the offering of the SecuritiesServicing Agreement and various other closing documents, and this Agreement and that, to the best of his or her knowledge after reasonable investigation:
(i) the representations and warranties of the Company and the Guarantors Seller in this Agreement are true and correct on and as of in all material respects; and
(ii) the Closing Date with the same effect as if made on the Closing Date and that the Company and each Guarantor has materially Seller has, in all material respects, 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.
(c) Wachovia shall have delivered to the Initial Purchaser a certificate, dated the Closing Date, of the President, a Senior Vice President or a Vice President of Wachovia to the effect that the signer of such certificate has examined, or has relied upon an examination conducted by appropriate persons authorized by him, of this Agreement, and that, to the best of his or her knowledge after reasonable investigation:
(i) the representations and warranties of Wachovia in this Agreement are true and correct in all material respects; and
(ii) since Wachovia has, in all material respects, complied with all the date of agreements and satisfied all the most recent financial statements included in conditions on its part to be performed or satisfied hereunder at or prior to the Pricing Disclosure Package and the Final Memorandum (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, the Guarantors and their respective 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 Memorandum (exclusive of any supplement thereto)Closing Date.
(jd) Immediately following the Execution Time, The Seller and the Initial Purchaser shall receive have received from KPMG LLP a letterLLP, dated as of the date of this Agreementcertified public accountants, and addressed to the Initial Purchaserletters, in form and substance satisfactory to the Initial Purchaser, containing statements and stating in effect that: (i) they have performed certain specified procedures as a result of which they have determined that the information of an accounting, financial or statistical nature set forth in the type ordinarily included Preliminary Memorandum and the Memorandum agrees with the data sheet or computer tape prepared by or on behalf of each of the Mortgage Loan Sellers, unless otherwise noted in accountants’ “comfort letters” to Initial Purchaser with respect to such letter; and
(ii) they have compared the financial statements and certain financial information relating to the Parent Guarantor and its subsidiaries data contained in the Pricing Disclosure Package and other customary matters.
(k) On the Closing Date, the Initial Purchaser shall have received from KPMG LLP a letter, dated as of the Closing Date, and addressed to the Initial Purchaser, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (j) of this Section, except that the cut-off date for certain procedures performed by them shall be a date not more than two Business Days prior to the Closing Date, and providing information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information relating to the Parent Guarantor and its subsidiaries contained in the Final Memorandum.
(l) The Company shall have received and provided to the Initial Purchaser an assurance from the Minister of Finance under the Exempted Undertakings Tax Protection Act, 1966 that, in the event of there being enacted in Bermuda any legislation imposing tax computed on profits data sheet or income or computed on any capital asset, gain or appreciation, or any tax in the nature of estate duty or inheritance tax, then the imposition of any such tax shall not until 31 March 2035 be applicable to the Company or any of its operations or its shares, debentures or other obligations, except insofar as such tax applies to persons ordinarily resident in Bermuda or to tax payable in accordance with the provisions of the Land Tax Xxx 0000 or otherwise payable in relation to any land leased to the Company.
(m) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Pricing Disclosure Package 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 computer tape referred to in paragraph (j) 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, the Guarantors and their respective 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 Memorandum (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in immediately preceding clause (i) or (ii) above, is, to information contained in the sole judgment an agreed upon sampling of the Initial Purchaser, so material Mortgage Loan files and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Pricing Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto).
(n) [Reserved.]
(o) For the purpose of effecting delivery of the Securities in book-entry form, the Company agrees to issue, in the name of Cede & Co., such Securities being issued to the Initial Purchaser and to instruct Cede & Co. to deliver the book-entry interest in such Securities to broker accounts other sources as directed shall be specified by the Initial Purchaser.
(p) The Company and the Guarantors shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Initial Purchaserthem, and the Initial Purchaser shall have received found such executed counterparts. The Company data and the Guarantors shall have executed and delivered the Registration Rights Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, and the Initial Purchaser shall have received such executed counterparts.
(q) Prior to the Closing Date, the Company and the Guarantors 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, this Agreement and all obligations of the Initial Purchaser hereunder may be canceled on, or at any time prior to, the Closing Date by the Initial Purchaser. Notice of such cancellation shall be given to the Company and the Guarantors in writing or by telephone or facsimile confirmed in writing. The documents required information to be delivered by this Section 6 shall be delivered at the office of Xxxxxx & Xxxxxxx LLPin agreement in all material respects, special counsel to the Company and the Guarantors, at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, on the Closing Dateunless otherwise noted in such letter.
Appears in 1 contract
Samples: Certificate Purchase Agreement (Wachovia Bank Commercial Mortgage Trust Series 2007-C31)
