Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties of the Company and the Note Guarantors contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company or any of its subsidiaries made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Note Guarantors to their respective obligations hereunder and to the following additional conditions: (a) The Company shall have requested and caused Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special U.S. counsel for the Company, to furnish to the Representatives its opinion, tax opinion and negative assurance letter, each dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule III attached hereto. (b) The Company shall have requested and caused Xx. Xxxxxx X. Villarreal, General Counsel for the Company, to furnish to the Representatives his opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule IV attached hereto. (c) The Company shall have requested and caused Xx. Xxxx Xxxxxxx y Xxxxx, General Counsel for CEMEX España, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule V attached hereto. (d) The Company shall have requested and caused Warendorf, special Dutch counsel to the Company, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule VI attached hereto. (e) The Company shall have requested and caused GHR Rechtsanwälte AG, special Swiss counsel to the Company, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule VII attached hereto. (f) The Company shall have requested and caused Xxxxxx Xxx, special Irish counsel for the Company, to furnish such opinion or opinions, dated the Closing Date, providing, among other related matters as the Representatives may reasonably require, that the issuance and sale of the Securities as provided in the Disclosure Package and the Final Memorandum, constitutes a public offering under the laws of the Republic of Ireland, 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; provided, however, that, prior to the delivery of such opinion on the Closing Date, BAML agrees to furnish a representation letter to Xxxxxx Xxx to the effect that it has offered the Securities to at least five persons within the Republic of Ireland. (g) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP and Xxxxx Xxxxxxx, S.C., counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives 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. (h) The Company and each Note Guarantor shall have furnished to the Representatives a certificate, signed by an executive officer of each of the Company and the Note Guarantors, dated as of the Closing Date, substantially in the form of Schedule VIII attached hereto. (i) At the Execution Time and at the Closing Date, the Company shall have requested and caused KPMG Xxxxxxxx Xxxxx, S.C. to furnish to the Representatives, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives and confirming that they are independent auditors within the meaning of the Exchange Act and the applicable published rules and regulations thereunder substantially in the form of Schedule IX attached hereto. (j) Any and all applicable amendments, supplements or modifications to the Financing Agreement, any of the Transaction Security Documents, the Intercreditor Agreement and any other documents derived therefrom and in connection therewith, as applicable, shall have been made and shall constitute legal, valid and binding obligations to each party thereof. (k) The Trustee shall be entitled to all rights and benefits provided in the Intercreditor Agreement as an Additional Notes Trustee (as such term is defined in the Intercreditor Agreement) and the Initial Purchasers, and/or each of the subsequent holders of the Securities, shall be entitled to all rights and benefits provided therein as Additional Notes Creditors (as such term is defined in the Intercreditor Agreement). (l) 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 after the Execution Time) and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Time), there shall not have been (i) any change, increase or decrease specified in the letter or letters referred to in paragraph (i) 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 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 after the Execution Time), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Time). (m) The Securities shall be eligible for clearance and settlement through DTC, Euroclear and Clearstream, as applicable, and any other relevant clearing system. (n) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or any of its subsidiaries’ debt securities by Standard & Poor’s and Fitch Ratings or any notice given of any intended or potential decrease in any such
Appears in 1 contract
Samples: Purchase Agreement (Cemex Sab De Cv)
Conditions to the Obligations of the Initial Purchasers. The respective obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties of Holdings, the Company and the Note Guarantors Guarantors, as applicable, contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of Holdings, the Company or any of its subsidiaries and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by Holdings, the Company and the Note Guarantors to of their respective obligations hereunder and to the following additional conditions:
(a) (i) The Company shall have requested and caused SkaddenXxxx Xxxxxxx, ArpsP.C., Slate, Xxxxxxx & Xxxx LLP, special U.S. counsel for the Company, to furnish to the Representatives Representative its opinion, tax opinion and negative assurance letter, each dated as of the Closing Date and addressed to the RepresentativesRepresentative, substantially in form and substance reasonably satisfactory to the form of Schedule III attached heretoRepresentative.
(bii) The Company shall have requested and caused Xx. Xxxxxx X. Villarreal, General Counsel for each of the Company, local and tax counsel to the Company listed on Schedule IV hereto to furnish to the Representatives his Representative its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the RepresentativesRepresentative, substantially in form and substance reasonably satisfactory to the form of Schedule IV attached heretoRepresentative.
(cb) The Company shall have requested and caused Xx. Xxxx Xxxxxxx y Xxxxx, General Counsel for CEMEX España, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule V attached hereto.
(d) The Company shall have requested and caused Warendorf, special Dutch counsel to the Company, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule VI attached hereto.
(e) The Company shall have requested and caused GHR Rechtsanwälte AG, special Swiss counsel to the Company, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule VII attached hereto.
(f) The Company shall have requested and caused Xxxxxx Xxx, special Irish counsel for the Company, to furnish such opinion or opinions, dated the Closing Date, providing, among other related matters as the Representatives may reasonably require, that the issuance and sale of the Securities as provided in the Disclosure Package and the Final Memorandum, constitutes a public offering under the laws of the Republic of Ireland, 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; provided, however, that, prior to the delivery of such opinion on the Closing Date, BAML agrees to furnish a representation letter to Xxxxxx Xxx to the effect that it has offered the Securities to at least five persons within the Republic of Ireland.
(g) The Representatives Representative shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP and Xxxxx Xxxxxxx, S.C.Xxxxxxx LLP, counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the RepresentativesRepresentative, with respect to the issuance and sale of the Securities, the Indenture, the Disclosure Package, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives Representative 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.
(h) The Company and each Note Guarantor shall have furnished to the Representatives a certificate, signed by an executive officer of each of the Company and the Note Guarantors, dated as of the Closing Date, substantially in the form of Schedule VIII attached hereto.
(i) At the Execution Time and at the Closing Date, the Company shall have requested and caused KPMG Xxxxxxxx Xxxxx, S.C. to furnish to the Representatives, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives and confirming that they are independent auditors within the meaning of the Exchange Act and the applicable published rules and regulations thereunder substantially in the form of Schedule IX attached hereto.
(j) Any and all applicable amendments, supplements or modifications to the Financing Agreement, any of the Transaction Security Documents, the Intercreditor Agreement and any other documents derived therefrom and in connection therewith, as applicable, shall have been made and shall constitute legal, valid and binding obligations to each party thereof.
(k) The Trustee shall be entitled to all rights and benefits provided in the Intercreditor Agreement as an Additional Notes Trustee (as such term is defined in the Intercreditor Agreement) and the Initial Purchasers, and/or each of the subsequent holders of the Securities, shall be entitled to all rights and benefits provided therein as Additional Notes Creditors (as such term is defined in the Intercreditor Agreement).
(l) 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 after the Execution Time) and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Time), there shall not have been (i) any change, increase or decrease specified in the letter or letters referred to in paragraph (i) 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 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 after the Execution Time), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Time).
(m) The Securities shall be eligible for clearance and settlement through DTC, Euroclear and Clearstream, as applicable, and any other relevant clearing system.
(n) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or any of its subsidiaries’ debt securities by Standard & Poor’s and Fitch Ratings or any notice given of any intended or potential decrease in any such
Appears in 1 contract
Samples: Purchase Agreement (APi Group Corp)
Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties of the Company and the Note Guarantors contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Company or any of its subsidiaries and the Note Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Note Guarantors to their respective obligations hereunder and to the following additional conditions:
(a) The Company shall have requested and caused Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special U.S. counsel for the Company, to furnish to the Representatives its opinion, tax opinion and negative assurance letter, each dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule III attached hereto.
(b) The Company shall have requested and caused Xx. Xxxxxx X. Villarreal, General Counsel for the Company, to furnish to the Representatives his opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule IV attached hereto.
(c) The Company shall have requested and caused Xx. Xxxx Xxxxxxx y Xxxxx, General Counsel for CEMEX España, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule V attached hereto.
(d) The Company shall have requested and caused Warendorf, special Dutch counsel to the CompanyCompany and the Dutch Note Guarantors, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule VI attached hereto.
(e) The Company shall have requested and caused GHR Rechtsanwälte AG, special Swiss counsel to the CompanyCompany and CEMEX Research, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule VII attached hereto.
(f) The Company shall have requested and caused Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP, special French counsel to the Company and CEMEX France, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule VIII attached hereto.
(g) The Company shall have requested and caused Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP, special English counsel to the Company and CEMEX UK, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule IX attached hereto.
(h) The Company shall have requested and caused Xxxxxx Xxx, special Irish counsel for the Company, to furnish such opinion or opinions, dated the Closing Date, providing, among other related matters as the Representatives may reasonably require, that the issuance and sale of the Securities as provided in the Disclosure Package and the Final Memorandum, constitutes a public offering under the laws of the Republic of Ireland, 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; provided, however, that, that prior to the delivery of such opinion on the Closing Date, BAML agrees to the Representatives agree that one of them shall furnish a representation letter to Xxxxxx Xxx to the effect that it has offered the Securities to at least five persons within a number of investors in the Republic of Ireland.
(gi) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP and Xxxxx Xxxxxxx, S.C., counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Disclosure Package, the Final Memorandum (as amended or supplemented at as of the Closing Date) and other related matters as the Representatives may reasonably require, and the Company and the Note Guarantors shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(hj) The Company and each Note Guarantor shall have furnished to the Representatives a certificate, signed by an executive officer of each of the Company and the Note Guarantors, dated as of the Closing Date, substantially in the form of Schedule VIII X attached hereto.
(ik) At the Execution Time and at the Closing Date, the Company shall have requested and caused KPMG Xxxxxxxx Xxxxx, S.C. to furnish to the Representatives, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives and confirming that they are independent auditors within the meaning of the Exchange Act and the applicable published rules and regulations thereunder substantially in the form of Schedule IX XI attached hereto.
(jl) Any and all applicable amendments, supplements or modifications to the Financing New Facilities Agreement, any of the Transaction Security Documents, the New Intercreditor Agreement and any other documents derived therefrom and in connection therewith, as applicable, shall have been made and shall constitute legal, valid and binding obligations to each party thereof.
(km) The Trustee shall be entitled to all rights and benefits provided in the New Intercreditor Agreement as an Additional Notes Trustee (as such term is defined in the New Intercreditor Agreement) and the Initial Purchasers, and/or each of the subsequent holders of the Securities, shall be entitled to all rights and benefits provided therein as Additional Notes Creditors (as such term is defined in the New Intercreditor Agreement).
(ln) 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 after the Execution Time) and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Time), there shall not have been (i) any change, increase or decrease specified in the letter or letters referred to in paragraph (ik) 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 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 after the Execution Time), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Time).
(mo) The Securities shall be eligible for clearance and settlement through DTC, Euroclear and Clearstream, as applicable, and any other relevant clearing system.
(np) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or any of its subsidiaries’ debt securities by Standard & Poor’s and Fitch Ratings or any notice given of any intended or potential decrease in any suchsuch rating. For the avoidance of doubt, any reiteration or reissuance of the outlook of a rating agency that was in place at the Execution Time shall not be considered a notice of an intended or potential decrease in a rating.
(q) Prior to the Closing Date, the Company and the Note Guarantors shall have furnished to the Representatives such further information, certificates and documents as the Representatives 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 Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered under this Section 6 will be delivered at the office of counsel for the Initial Purchasers, at Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxx XxXxxxxxxx, Esq., on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Cemex Sab De Cv)
Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Note Guarantors contained herein at the Execution Time and the Closing DateDate pursuant to Section 1 hereof, to the accuracy of the statements of the Company or any of its subsidiaries and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Note Guarantors to of its or their respective obligations hereunder and to the following additional conditions:
(a) The Company shall have requested and caused Skadden, Arps, Slate, Xxxxxxx & Xxxx Fraser Xxxxxx Casgrain LLP, special U.S. Canadian counsel for to the CompanyCompany and the Guarantors, to furnish to the Representatives its opinion, tax opinion and negative assurance letter, each dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule III attached Exhibit A hereto.
(b) The Company shall have requested and caused Xx. Xxxxxx X. VillarrealXxxxx Day, General Counsel for U.S. counsel to the CompanyCompany and the Guarantors, to furnish to the Representatives his its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule IV attached Exhibit B hereto.
(c) The Company shall have requested and caused Xx. Xxxx Xxxxxxx y XxxxxGoulston & Storrs, General Counsel for CEMEX EspañaP.C., special Massachusetts counsel to the Company, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule V attached Exhibit C hereto.
(d) The Company shall have requested and caused WarendorfTorys LLP, special Dutch U.S. counsel to the Company, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule VI attached Exhibit D hereto.
(e) The Company shall have requested and caused GHR Rechtsanwälte AGXxxxxx X. Xxxx, special Swiss counsel to Vice President, Legal Affairs and Corporate Secretary of the Company, to furnish to the Representatives its his opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule VII attached Exhibit E hereto.
(f) The Company shall have requested and caused Xxxxxxx, Xxxxxx Xxx& Xxxxxxx, P.A., special Irish North Carolina counsel for to the Company, to furnish such opinion or opinionsto the Representatives its opinion, dated the Closing DateDate and addressed to the Representatives, providing, among other related matters as the Representatives may reasonably require, that the issuance and sale of the Securities as provided substantially in the Disclosure Package and the Final Memorandum, constitutes a public offering under the laws form of the Republic of Ireland, 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; provided, however, that, prior to the delivery of such opinion on the Closing Date, BAML agrees to furnish a representation letter to Xxxxxx Xxx to the effect that it has offered the Securities to at least five persons within the Republic of IrelandExhibit F hereto.
(g) The Company shall have requested and caused Xxxxx Day, special French counsel to the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form of Exhibit G hereto.
(h) The Company shall have requested and caused Xxxxx Day, special German counsel to the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form of Exhibit H hereto.
(i) The Company shall have requested and caused Xxxxx Day, special U.K. counsel to the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form of Exhibit I hereto.
(j) The Company shall have requested and caused Fasken Xxxxxxxxx XxXxxxxx s.r.l., counsel to the Company in connection with the Senior Credit Facility, to furnish to the Representatives a letter authorizing them to rely on their opinion delivered in connection with the consummation of the transactions contemplated by the Senior Credit Facility, substantially in the form of Exhibit J hereto.
(k) The Representatives shall have received from Weil, Gotshal & Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP and Xxxxx XxxxxxxLLP, S.C., U.S. counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Disclosure PackageRegistration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives 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.
(hl) The Representatives shall have received from Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, Canadian counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, 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 Representatives 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.
(m) The Company, on behalf of itself and each Note Guarantor Guarantor, shall have furnished to the Representatives a certificatecertificate of the Company, signed by an executive the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, 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 representations and warranties of each of the Company and the Note Guarantors, dated as of the Closing Date, substantially Guarantors in the form of Schedule VIII attached hereto.
(i) At the Execution Time this Agreement are true and at the Closing Date, the Company shall have requested and caused KPMG Xxxxxxxx Xxxxx, S.C. to furnish to the Representatives, letters, dated respectively as of the Execution Time correct on and as of the Closing Date with the same effect as if made on the Closing Date, in form and substance satisfactory to the Representatives and confirming that they are independent auditors within the meaning of the Exchange Act and the applicable published rules and regulations thereunder substantially in the form of Schedule IX attached hereto.
(j) Any and all applicable amendments, supplements or modifications to the Financing Agreement, any of the Transaction Security Documents, the Intercreditor Agreement and any other documents derived therefrom and in connection therewith, as applicable, shall have been made and shall constitute legal, valid and binding obligations to each party thereof.
(k) The Trustee shall be entitled to all rights and benefits provided in the Intercreditor Agreement as an Additional Notes Trustee (as such term is defined in the Intercreditor Agreement) and the Initial Purchasers, and/or each of the subsequent holders of Company and the Securities, shall Guarantors has complied with all the agreements and satisfied all the conditions on its part to be entitled to all rights and benefits provided therein as Additional Notes Creditors (as such term is defined in the Intercreditor Agreement).
(l) Subsequent performed or satisfied hereunder at or prior 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 after the Execution Time) Closing Date; and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Time), there shall not have been (i) any change, increase or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6; or (ii) any changesince September 30, or any development involving a prospective change2002, there has been no material adverse change in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries 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 by the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Time), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Timethereto).
(mn) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, substantially in the form attached hereto as Exhibit K (with respect to the letter dated as of the Execution Time) and in the form and substance satisfactory to the Representatives (with respect to the letter dated as of the Closing Date).
(o) The Company and each of the Guarantors shall have entered into the Registration Rights Agreement.
(p) Each of the Credit Parties shall have entered into the Senior Credit Facility. There shall not exist at and as of the Closing Date any conditions that would constitute a default (or an event that with notice or the lapse of time, or both, would constitute a default) under the Senior Credit Facility.
(q) 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 DTC, Euroclear and Clearstream, as applicable, and any other relevant clearing systemThe Depository Trust Company.
(nr) Subsequent to the Execution TimeTime and on or prior to the Closing Date, there shall not have been any decrease in the rating of any of the Company’s or any of its subsidiaries’ debt securities (including the Securities) by Standard & Poor’s and Fitch Ratings 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 suchsuch rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(s) Prior to the Closing Date, the Company shall have obtained all consents, approvals, authorizations and orders of, and shall have duly made all registrations, qualifications and filing with, any court or regulatory authority or other governmental agency or instrumentality required in connection with the transactions contemplated by the Final Memorandum and the execution, delivery and performance of this Agreement, except where the failure to have done so (i) would not have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby, and (ii) would not have a Material Adverse Effect.
(t) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives 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 reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company 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 counsel for the Initial Purchasers, Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Cascades Inc)
Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Note Guarantors contained herein at the Execution Time and the Closing DateDate pursuant to Section 1 hereof, to the accuracy of the statements of the Company or any of its subsidiaries and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Note Guarantors to of its or their respective obligations hereunder and to the following additional conditions:
(a) The Company shall have requested and caused Skadden, Arps, Slate, Xxxxxxx & Xxxx Fraser Xxxxxx Casgrain LLP, special U.S. Canadian counsel for to the CompanyCompany and the Guarantors, to furnish to the Representatives its opinion, tax opinion and negative assurance letter, each dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule III attached Exhibit A hereto.
(b) The Company shall have requested and caused Xx. Xxxxxx X. VillarrealXxxxx Day, General Counsel for U.S. counsel to the CompanyCompany and the Guarantors, to furnish to the Representatives his its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule IV attached Exhibit B hereto.
(c) The Company shall have requested and caused Xx. Xxxx Xxxxxxx y XxxxxTorys LLP, General Counsel for CEMEX EspañaU.S. counsel to the Company, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule V attached Exhibit C hereto.
(d) The Company shall have requested and caused WarendorfXxxxxx X. Xxxx, special Dutch counsel to Vice President, Legal Affairs and Corporate Secretary of the Company, to furnish to the Representatives its his opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule VI attached Exhibit D hereto.
(e) The Company shall have requested and caused GHR Rechtsanwälte AGXxxxxxx, Xxxxxx & Xxxxxxx, P.A., special Swiss North Carolina counsel to the Company, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule VII attached Exhibit E hereto.
(f) The Company shall have requested and caused Xxxxxx XxxXxxxx Day, special Irish French counsel for to the Company, to furnish such opinion or opinionsto the Representatives its opinion, dated the Closing DateDate and addressed to the Representatives, providing, among other related matters as the Representatives may reasonably require, that the issuance and sale of the Securities as provided substantially in the Disclosure Package and the Final Memorandum, constitutes a public offering under the laws form of the Republic of Ireland, 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; provided, however, that, prior to the delivery of such opinion on the Closing Date, BAML agrees to furnish a representation letter to Xxxxxx Xxx to the effect that it has offered the Securities to at least five persons within the Republic of IrelandExhibit F hereto.
(g) The Company shall have requested and caused Xxxxx Day, special German counsel to the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form of Exhibit G hereto.
(h) The Company shall have requested and caused Xxxxx Day, special U.K. counsel to the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form of Exhibit H hereto.
(i) The Representatives shall have received from Weil, Gotshal & Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP and Xxxxx XxxxxxxLLP, S.C., U.S. counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Disclosure PackageRegistration Rights Agreement, the Final Offering Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives 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.
(hj) The Representatives shall have received from Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, Canadian counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Rights Agreement, the Offering Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives 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.
(k) The Company, on behalf of itself and each Note Guarantor Guarantor, shall have furnished to the Representatives a certificatecertificate of the Company, signed by an executive the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Offering Memorandum, any amendment or supplement to the Offering Memorandum and this Agreement and that (i) the representations and warranties of each of the Company and the Note Guarantors, dated as of the Closing Date, substantially Guarantors in the form of Schedule VIII attached hereto.
(i) At the Execution Time this Agreement are true and at the Closing Date, the Company shall have requested and caused KPMG Xxxxxxxx Xxxxx, S.C. to furnish to the Representatives, letters, dated respectively as of the Execution Time correct on and as of the Closing Date with the same effect as if made on the Closing Date, in form and substance satisfactory to the Representatives and confirming that they are independent auditors within the meaning of the Exchange Act and the applicable published rules and regulations thereunder substantially in the form of Schedule IX attached hereto.
(j) Any and all applicable amendments, supplements or modifications to the Financing Agreement, any of the Transaction Security Documents, the Intercreditor Agreement and any other documents derived therefrom and in connection therewith, as applicable, shall have been made and shall constitute legal, valid and binding obligations to each party thereof.
(k) The Trustee shall be entitled to all rights and benefits provided in the Intercreditor Agreement as an Additional Notes Trustee (as such term is defined in the Intercreditor Agreement) and the Initial Purchasers, and/or each of the subsequent holders of Company and the Securities, shall Guarantors has complied with all the agreements and satisfied all the conditions on its part to be entitled to all rights and benefits provided therein as Additional Notes Creditors (as such term is defined in the Intercreditor Agreement).
(l) Subsequent performed or satisfied hereunder at or prior 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 after the Execution Time) Closing Date; and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Time), there shall not have been (i) any change, increase or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6; or (ii) any changesince September 30, or any development involving a prospective change2004, there has been no material adverse change in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries 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 by the Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after thereto).
(l) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, substantially in the form attached hereto as Exhibit I (with respect to the letter dated as of the Execution Time), the effect of which, in any case referred to in clause (i) or (ii) above, is, and in the sole judgment form and substance satisfactory to the Representatives (with respect to the letter dated as of the Representatives, 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 Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution TimeClosing Date).
(m) The Company and each of the Guarantors shall have entered into the Registration Rights Agreement.
(n) 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 DTC, Euroclear and Clearstream, as applicable, and any other relevant clearing systemThe Depository Trust Company.
(no) Subsequent to the Execution TimeTime and on or prior to the Closing Date, there shall not have been any decrease in the rating of any of the Company’s or any of its subsidiaries’ debt securities (including the Securities) by Standard & Poor’s and Fitch Ratings 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 suchsuch rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(p) Prior to the Closing Date, the Company shall have obtained all consents, approvals, authorizations and orders of, and shall have duly made all registrations, qualifications and filing with, any court or regulatory authority or other governmental agency or instrumentality required in connection with the transactions contemplated by the Offering Memorandum and the execution, delivery and performance of this Agreement, except where the failure to have done so (i) would not have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby, and (ii) would not have a Material Adverse Effect.
(q) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives 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 reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company 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 counsel for the Initial Purchasers, Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Cascades Inc)
Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities Notes shall be subject to the accuracy of the representations and warranties of the Company Issuer and the Note Guarantors Company contained herein at the Execution Time and the Closing Date, to the accuracy of the statements of the Issuer and the Company or any of its subsidiaries made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuer and the Note Guarantors to Company of their respective obligations hereunder and to the following additional conditions:
(a) The Issuer and the Company shall have requested and caused Skadden, Arps, Slate, Xxxxx & Xxxxxxx & Xxxx LLP, special U.S. counsel for the Issuer and the Company, to furnish to the Representatives its opinion, tax opinion and negative assurance letter, each dated as of the Closing Date and addressed to the RepresentativesInitial Purchasers, substantially to the effect set forth in the form of Schedule III attached Annex A hereto.
(b) The Issuer and the Company shall have requested and caused Xx. Xxxxxx X. VillarrealXxxxx & Overy LLP, General Counsel English counsel for the Company, to furnish to the Representatives his opinion, subject to certain applicable exceptions, qualifications Issuer and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule IV attached hereto.
(c) The Company shall have requested and caused Xx. Xxxx Xxxxxxx y Xxxxx, General Counsel for CEMEX España, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule V attached hereto.
(d) The Company shall have requested and caused Warendorf, special Dutch counsel to the Company, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Initial Purchasers Representatives, substantially in the form of Schedule VI attached as Annex B hereto.
(e) The Company shall have requested and caused GHR Rechtsanwälte AG, special Swiss counsel to the Company, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule VII attached hereto.
(f) The Company shall have requested and caused Xxxxxx Xxx, special Irish counsel for the Company, to furnish such opinion or opinions, dated the Closing Date, providing, among other related matters as the Representatives may reasonably require, that the issuance and sale of the Securities as provided in the Disclosure Package and the Final Memorandum, constitutes a public offering under the laws of the Republic of Ireland, 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; provided, however, that, prior to the delivery of such opinion on the Closing Date, BAML agrees to furnish a representation letter to Xxxxxx Xxx to the effect that it has offered the Securities to at least five persons within the Republic of Ireland.
(gc) The Representatives shall have received from Xxxxxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx LLP and Xxxxx XxxxxxxLLP, S.C., U.S. counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the SecuritiesNotes, the Indenture, the Disclosure PackageRegistration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Issuer 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.
(hd) The Representatives shall have received from Xxxxxxx Xxxxx, English counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Notes, the Indenture, the Registration Rights Agreement, the Final Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives may reasonably require, and the Issuer and the Company and each Note Guarantor shall have furnished to such counsel such documents as they request for the Representatives a certificate, signed by an executive officer purpose of each of the Company and the Note Guarantors, dated as of the enabling them to pass upon such matters.
(e) At Closing Date, substantially in there shall not have been, since the form of Schedule VIII attached hereto.
(i) At date hereof or since the Execution Time and at the Closing Date, the Company shall have requested and caused KPMG Xxxxxxxx Xxxxx, S.C. to furnish to the Representatives, letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives and confirming that they are independent auditors within the meaning of the Exchange Act and the applicable published rules and regulations thereunder substantially in the form of Schedule IX attached hereto.
(j) Any and all applicable amendments, supplements or modifications to the Financing Agreement, any of the Transaction Security Documents, the Intercreditor Agreement and any other documents derived therefrom and in connection therewith, as applicable, shall have been made and shall constitute legal, valid and binding obligations to each party thereof.
(k) The Trustee shall be entitled to all rights and benefits provided in the Intercreditor Agreement as an Additional Notes Trustee (as such term is defined in the Intercreditor Agreement) and the Initial Purchasers, and/or each of the subsequent holders of the Securities, shall be entitled to all rights and benefits provided therein as Additional Notes Creditors (as such term is defined in the Intercreditor Agreement).
(l) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Disclosure Package (exclusive of Final Memorandum, any amendment or supplement thereto after the Execution Time) material adverse change and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Time), there shall not have been (i) any change, increase or decrease specified no development reasonably likely to cause a prospective material adverse change in the letter financial condition or letters referred to in paragraph (i) the earnings or business of this Section 6; the Issuer 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 Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except and the Representatives shall have received a certificate executed by each of the chief financial officer and the secretary or other director of the Issuer and the Company, dated as of Closing Date, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as of Closing Date, and (iii) the Issuer and the Company have each complied with all agreements and satisfied all conditions on their respective parts to be performed or satisfied at or prior to Closing Date.
(f) At the Execution Time, the Company shall have requested and caused Deloitte & Touche LLP to furnish to the Representatives letters, dated as of the Execution Time, to the effect set forth in or contemplated Annex C hereto and containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Time), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Time)Memorandum.
(mg) At Closing Date, the Company shall have requested and caused Deloitte & Touche LLP to furnish to the Representatives letters, dates as of the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (f) of this Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Date.
(h) The Securities Notes shall be eligible for clearance and settlement through DTC, Euroclear and Clearstream, as applicable, and any other relevant clearing systemThe Depository Trust Company.
(ni) Subsequent The Luxembourg Stock Exchange shall have agreed to list the Notes, subject only to notice of issuance.
(j) The Notes shall have been rated Baa2 by Xxxxx’x Investors Services Inc. and BBB+ by Standard & Poor’s Ratings Services and subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company’s or any of its subsidiaries’ debt securities by Standard & Poor’s and Fitch Ratings 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 suchsuch rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) Prior to the Closing Date, the Issuer and the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been satisfied 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 Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the 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 counsel for the Initial Purchasers, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (WPP Group PLC)
Conditions to the Obligations of the Initial Purchasers. The obligations of the Initial Purchasers to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company and the Note Guarantors contained herein at the Execution Time and the Closing DateDate pursuant to Section 1 hereof, to the accuracy of the statements of the Company or any of its subsidiaries and the Guarantors made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Note Guarantors to of its or their respective obligations hereunder and to the following additional conditions:
(a) The Company shall have requested and caused Skadden, Arps, Slate, Xxxxxxx & Xxxx Fraser Xxxxxx Casgrain LLP, special U.S. Canadian counsel for to the CompanyCompany and the Guarantors, to furnish to the Representatives its opinion, tax opinion and negative assurance letter, each dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule III attached Exhibit A hereto.
(b) The Company shall have requested and caused Xx. Xxxxxx X. VillarrealXxxxx Day, General Counsel for U.S. counsel to the CompanyCompany and the Guarantors, to furnish to the Representatives his its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule IV attached Exhibit B hereto.
(c) The Company shall have requested and caused Xx. Xxxx Xxxxxxx y XxxxxGoulston & Storrs, General Counsel for CEMEX EspañaP.C., special Massachusetts counsel to the Company, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule V attached Exhibit C hereto.
(d) The Company shall have requested and caused WarendorfTorys LLP, special Dutch U.S. counsel to the Company, to furnish to the Representatives its opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule VI attached Exhibit D hereto.
(e) The Company shall have requested and caused GHR Rechtsanwälte AGXxxxxx X. Xxxx, special Swiss counsel to Vice President, Legal Affairs and Corporate Secretary of the Company, to furnish to the Representatives its his opinion, subject to certain applicable exceptions, qualifications and conditions acceptable to the Representatives, dated as of the Closing Date and addressed to the Representatives, substantially in the form of Schedule VII attached Exhibit E hereto.
(f) The Company shall have requested and caused Xxxxxxx, Xxxxxx Xxx& Xxxxxxx, P.A., special Irish North Carolina counsel for to the Company, to furnish such opinion or opinionsto the Representatives its opinion, dated the Closing DateDate and addressed to the Representatives, providing, among other related matters as the Representatives may reasonably require, that the issuance and sale of the Securities as provided substantially in the Disclosure Package and the Final Memorandum, constitutes a public offering under the laws form of the Republic of Ireland, 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; provided, however, that, prior to the delivery of such opinion on the Closing Date, BAML agrees to furnish a representation letter to Xxxxxx Xxx to the effect that it has offered the Securities to at least five persons within the Republic of IrelandExhibit F hereto.
(g) The Company shall have requested and caused Xxxxx Day, special French counsel to the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form of Exhibit G hereto.
(h) The Company shall have requested and caused Xxxxx Day, special German counsel to the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form of Exhibit H hereto.
(i) The Company shall have requested and caused Xxxxx Day, special U.K. counsel to the Company, to furnish to the Representatives its opinion, dated the Closing Date and addressed to the Representatives, substantially in the form of Exhibit I hereto.
(j) The Representatives shall have received from Weil, Gotshal & Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP and Xxxxx XxxxxxxLLP, S.C., U.S. counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Disclosure PackageRegistration Rights Agreement, the Final Offering Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives 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.
(hk) The Representatives shall have received from Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, Canadian counsel for the Initial Purchasers, such opinion or opinions, dated the Closing Date and addressed to the Representatives, with respect to the issuance and sale of the Securities, the Indenture, the Registration Rights Agreement, the Offering Memorandum (as amended or supplemented at the Closing Date) and other related matters as the Representatives 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.
(l) The Company, on behalf of itself and each Note Guarantor Guarantor, shall have furnished to the Representatives a certificatecertificate of the Company, signed by an executive the Chairman of the Board or the President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Offering Memorandum, any amendment or supplement to the Offering Memorandum and this Agreement and that (i) the representations and warranties of each of the Company and the Note Guarantors, dated as of the Closing Date, substantially Guarantors in the form of Schedule VIII attached hereto.
(i) At the Execution Time this Agreement are true and at the Closing Date, the Company shall have requested and caused KPMG Xxxxxxxx Xxxxx, S.C. to furnish to the Representatives, letters, dated respectively as of the Execution Time correct on and as of the Closing Date with the same effect as if made on the Closing Date, in form and substance satisfactory to the Representatives and confirming that they are independent auditors within the meaning of the Exchange Act and the applicable published rules and regulations thereunder substantially in the form of Schedule IX attached hereto.
(j) Any and all applicable amendments, supplements or modifications to the Financing Agreement, any of the Transaction Security Documents, the Intercreditor Agreement and any other documents derived therefrom and in connection therewith, as applicable, shall have been made and shall constitute legal, valid and binding obligations to each party thereof.
(k) The Trustee shall be entitled to all rights and benefits provided in the Intercreditor Agreement as an Additional Notes Trustee (as such term is defined in the Intercreditor Agreement) and the Initial Purchasers, and/or each of the subsequent holders of Company and the Securities, shall Guarantors has complied with all the agreements and satisfied all the conditions on its part to be entitled to all rights and benefits provided therein as Additional Notes Creditors (as such term is defined in the Intercreditor Agreement).
(l) Subsequent performed or satisfied hereunder at or prior 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 after the Execution Time) Closing Date; and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Time), there shall not have been (i) any change, increase or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6; or (ii) any changesince March 31, or any development involving a prospective change2002, there has been no material adverse change in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries 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 by the Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the Execution Time), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, 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 Disclosure Package and the Final Memorandum (exclusive of any amendment or supplement thereto after the Execution Timethereto).
(m) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, substantially in the form attached hereto as Exhibit J (with respect to the letter dated as of the Execution Time) and in the form and substance satisfactory to the Representatives (with respect to the letter dated as of the Closing Date).
(n) The Company and each of the Guarantors shall have entered into the Registration Rights Agreement.
(o) 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 DTC, Euroclear and Clearstream, as applicable, and any other relevant clearing systemThe Depository Trust Company.
(np) Subsequent to the Execution TimeTime and on or prior to the Closing Date, there shall not have been any decrease in the rating of any of the Company’s or any of its subsidiaries’ debt securities (including the Securities) by Standard & Poor’s and Fitch Ratings 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 suchsuch rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(q) Prior to the Closing Date, the Company shall have obtained all consents, approvals, authorizations and orders of, and shall have duly made all registrations, qualifications and filing with, any court or regulatory authority or other governmental agency or instrumentality required in connection with the transactions contemplated by the Offering Memorandum and the execution, delivery and performance of this Agreement, except where the failure to have done so (i) would not have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby, and (ii) would not have a Material Adverse Effect.
(r) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives 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 reasonably satisfactory in form and substance to the Representatives and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company 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 counsel for the Initial Purchasers, Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Cascades Inc)
