Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares are subject to each of the following terms and conditions: (a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million. (b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date. (c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date. (d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with. (e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that: (i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company. (ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof. (iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus. (iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole. (v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company. (vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company. (vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole. (viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering). (ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company. (x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law. (xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes. (xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company. (xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement. (f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that: (i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus. (ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement. (iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act. (iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 2 contracts
Sources: Subscription Agreement (Latin American Export Bank), Subscription Agreement (Latin American Export Bank)
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser under this Agreement to surrender for conversion Securities and to purchase the and pay for any Shares are subject to each of the following terms and conditions:
(a) On the Closing Dateshall be subject, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the CompanyPurchaser's sole discretion, to the effect that the signers accuracy of such certificate have carefully examined this Agreement and that the representations and warranties of each of the Company and BJI contained in this Agreement are true herein as of the date hereof and correct as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Closing Expiration Date, with the same effect as if made on Redemption Date and the Closing Date, respectively, to the accuracy of the statements of the officers of each of the Company and BJI made pursuant to the provisions hereof, to the performance by each of the Company and BJI of its covenants and agreements hereunder and to the following additional conditions:
(a) The Registration Statement shall have been declared effective not later than 5:00 P.M., New York City time, on the date hereof or such later time as the Purchaser and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been or shall be filed with the Commission in effect the manner and within the time period required by Rule 424(b) under the Act; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference in the Registration Statement or any post-effective amendment thereto or the Prospectus or any amendment or supplement thereto shall be in effect have been issued and no proceedings for such that purpose shall be pending before have been instituted or threatened or, to the knowledge of the Company, BJI or the Purchaser, shall be contemplated by the Commission, ; and each of the Company and BJI shall have complied with any requests by request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with).
(eb) On each of the effective date of the Registration Statement and the Closing Date there Date, the Purchaser shall have been furnished to the Purchaser the opinion received an opinion, dated such respective date, of ▇▇▇▇▇, ▇▇▇▇ and ▇▇▇▇ & ▇▇▇▇▇▇▇LLP, Panamanian counsel for the Company, dated the Closing Date Company and in form and substance satisfactory to counsel for the PurchaserBJI, to the effect that:
(i) The each of the Company and BJI has been duly organized incorporated and is validly existing as a limited liability company corporation in good standing under the laws of its jurisdiction of incorporation and is duly qualified to transact business as a foreign corporation and is in good standing under the laws of the Republic Commonwealth of Panama Massachusetts;
(ii) each of the Company and is duly qualified BJI has corporate power to do own or lease its properties and conduct its business and is in good standing as described in the Republic Registration Statement and the Prospectus, and each of Panama the Company and BJI has corporate power to enter into this Agreement and to carry out all the terms and provisions hereof and thereof to be carried out by it;
(iii) each of the Company and BJI has an authorized capitalization as set forth in the Prospectus; the Conversion Shares, including the Shares, have been duly authorized and reserved for issuance by all necessary corporate action of the Company upon either conversion of the Securities or issuance to the Purchaser hereunder; the Conversion Shares, including the Shares, when issued by the Company upon either conversion of the Securities or issuance to the Purchaser hereunder, and, in the case of the Shares, paid for by the Purchaser pursuant to this Agreement, will be validly issued, fully paid and nonassessable; the Conversion Shares, including the Shares, have been duly authorized for listing, subject to official notice of issuance, on the NYSE (provided that this opinion need not be rendered on the effective date of the Registration Statement); to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic holders of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued outstanding shares of capital stock of the Company have been duly are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in knowledge of such counsel no holders of securities of the Prospectus.Company are entitled to have such securities registered under the Registration Statement;
(iv) To the best knowledge statements set forth under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" and "Description of Waban Capital Stock" in the Prospectus, insofar as such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation statements purport to summarize certain provisions of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document capital stock of the Company or any applicable lawBJI, rule or administrative regulation are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of or the Distribution" and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included in the Republic of PanamaProspectus, or any decree known to such counsel of any court or governmental agency or governmental authority of or and under the heading "Legal Proceedings" in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their propertiesCompany's Form 10-K, except for insofar as such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have statements constitute a material adverse effect on the business, financial condition or results of operations summary of the Company and the Subsidiarieslegal matters, taken as a whole.
(viii) No consentdocuments or proceedings referred to therein, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required are correct in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.respects;
Appears in 2 contracts
Sources: Standby Purchase Agreement (Waban Inc), Standby Purchase Agreement (Waban Inc)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the representations and warranties of the Operating Partnership and the Company herein included, to the performance by the Operating Partnership and the Company of their respective obligations hereunder, and to the following terms and further conditions:
(a) On the At each Closing Date, (i) no proceedings shall be pending or, to the knowledge of the Operating Partnership or the Company, threatened against the Operating Partnership, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant or any Subsidiary before or by any Federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in any Material Adverse Effect, (ii) the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained set forth in this Agreement and in the certificate delivered pursuant to Section 6(c) 1 hereof shall be true and correct when accurate as though expressly made and on at and as of such Closing Date; and (iii) each of the Closing Date as if made on such date Operating Partnership and the Company shall have performed has complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(db) No order preventing or suspending At each Closing Date, the use of the Prospectus Purchaser shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened received a certificate executed by the Commission, president or chief executive officer and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion chief financial officer of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counselClosing Date, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying that the representations and warranties contained in Section 1 are accurate as a wholeif made at the applicable Closing Date and that the conditions precedent set forth in this Section 6 have been satisfied.
(vc) To At each Closing Date, the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute Purchaser shall have received a default, in the due performance and observance of any term, covenant or condition certificate executed by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations secretary of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor dated as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The executiondate hereof, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying as a whole.
(viii) No consentto the resolutions of the Board of Directors of the Company, approvalon behalf of the Company and as general partner of the Operating Partnership, authorization or order of or filingand other limited partnership and corporate proceedings relating to the authorization, registrationexecution, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering)hereby.
(ixd) All necessary corporate action has At the initial Closing Date, the Purchaser shall have received (i) the Amendment and the Partnership Agreement, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively, duly executed by the Company, in its capacity as general partner of the Operating Partnership, and on behalf of the existing limited partners in the Operating Partnership (via power of attorney), and the Purchaser; and (ii) a certificate or book entry registered in the name of the Purchaser representing the number of Preferred Units to be purchased by the Purchaser pursuant to Section 3 (the “Preferred Units Certificate”), duly executed by the Company, in its capacity as general partner of the Operating Partnership.
(e) At the initial Closing Date, counsel for the Purchaser shall have been duly furnished with such documents as it may reasonably require in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein included; and validly all proceedings taken by the Operating Partnership or the Company to authorize the execution, delivery and performance of this Agreement and that are necessary in connection with the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to Preferred Units shall be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Purchaser and the Subsidiaries, taken its counsel. If any condition specified in this Section 6 shall not have been fulfilled when and as a whole, or which is required to be disclosed in fulfilled, this Agreement may be terminated by the Registration Statement Purchaser by notice to the Operating Partnership and the Prospectus.
(ii) The execution Company at any time at or prior to the final Closing Date, and delivery by such termination shall be without liability of any party to any other party, except that the Company provisions concerning payment of this Agreement expenses under Section 5 hereof, the provisions concerning indemnification under Section 7 hereof, and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock provisions relating to governing law shall remain in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreementeffect.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 2 contracts
Sources: Series a Cumulative Redeemable Preferred Unit Purchase Agreement (Strategic Student & Senior Housing Trust, Inc.), Preferred Unit Purchase Agreement (Strategic Storage Trust II, Inc.)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement Purchasers to purchase and pay for the Shares are Purchasers' Preferred Securities shall be subject in their discretion to each the accuracy of and compliance in all material respects with the representations and the warranties of the Issuers herein contained as of the date hereof and the Closing Date, to the performance by the Issuers of their obligations hereunder and to the following terms and additional conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company Registration Statement shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect become effective and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no have been issued under the Act or proceedings for such purpose shall be pending before therefor initiated or threatened by the Commission, and any requests by Commission prior to the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied withClosing Date.
(eb) On You shall have received an opinion, dated the Closing Date there shall have been furnished to the Purchaser the opinion Date, of Anderson, Byrd, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Panamanian Kansas counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the PurchaserIssuers, to the effect that:
(i) The Company has been duly organized incorporated and is validly existing as a limited liability company corporation in good standing under the laws of the Republic State of Panama Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus;
(ii) The Corresponding Debt Securities and the Guarantee have been duly authorized, executed, authenticated, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or by general principles of equity;
(iii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or by general principles of equity;
(iv) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(vi) This Agreement has been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C., Missouri counsel for the Issuers, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; and the Company is duly qualified to do business and is as a foreign corporation in good standing in the Republic States of Panama andArkansas, to Missouri and Oklahoma, which are the best knowledge of such counsel, but without inquiry, only jurisdictions (other than Kansas) in each other jurisdiction which it owns or leases substantial properties or in which the character or location of its assets or properties (owned, leased or licensed) or the nature conduct of its business makes requires such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.qualification;
(ii) The Company has holds all the valid and subsisting franchises which are necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under to authorize it to carry on the laws of the Republic of Panama utility businesses in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and which it is engaged as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.Prospectus;
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have This Agreement has been duly authorized, executed and validly authorized and issued, are fully paid and non-assessable and conform to delivered by the description thereof contained in the Prospectus.Company;
(iv) To Neither the best knowledge of such counselissuance, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents sale, delivery and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation performance of the Republic of Panama where Corresponding Debt Securities or the consequences of such violation could have a material adverse effect on Guarantee nor the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares this Agreement, the Trust Agreement or the Securities Resolution will conflict with, violate or result in breach of Common Stock in any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Rights Offering) will not Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky law of any jurisdiction), conflict with or result in the a breach of any term of the terms, conditions or provision ofprovisions of the Restated Articles of Incorporation, as amended, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) underBy-Laws, or require any consent or waiver underas amended, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, or of any material agreement, indenture, agreement or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property properties or assets of the Company is subject, nor will such actions violate Company; and
(v) Relying as to materiality to a large extent upon the charter or by-laws or other governing document statements and opinions of representatives of the Company Issuers, such counsel have no reason to believe that either the Registration Statement or any applicable law, rule or administrative regulation of or in the Republic of PanamaProspectus, or any decree known amendment or supplement thereto, as of their respective effective or issue dates, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein not misleading; the descriptions in the Registration Statement and Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any court legal or governmental agency or governmental authority of or proceedings required to be described in the Republic Prospectus by Item 103 of Panama having jurisdiction over Regulation S-K under the Company Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial or statistical information contained in the Registration Statement or the Subsidiaries or any of their propertiesProspectus. In rendering such opinion, except for such conflicts▇▇▇▇▇▇▇, breaches▇▇▇▇▇ & ▇▇▇▇▇, defaults and other events P.C. may rely, as would not, individually or in to the aggregate, have a material adverse effect on the business, financial condition or results of operations incorporation of the Company and all matters governed by Kansas law, upon the Subsidiariesopinion of ▇▇▇▇▇▇▇▇, taken ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ referred to in paragraph (b) above and, as a wholeto all matters covered thereby, upon the opinion of Brydon, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(viiid) No consentYou shall have received an opinion, dated the Closing Date, of Brydon, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the Issuers, to the effect that no approval, authorization authorization, consent or other order of any public board or filingbody in the States of Missouri, registrationOklahoma or Arkansas is legally required for the issuance, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution sale, delivery and delivery by the Company of this Agreement and the consummation performance of the transactions contemplated hereby and thereby (including without limitation Purchased Preferred Securities, the offeringCorresponding Debt Securities, issuance and sale by the Company of shares of Common Stock in Securities or the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution, the Trust Agreement or this Agreement and (it being understood that such counsel need express no opinion as to any approvals which may be required under the issuance and sale securities acts or Blue Sky laws of the Shares. This Agreement has been duly and validly executed and delivered by the Companyany jurisdiction).
(xe) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on You shall have received an opinion, dated the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gainsDate, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, & ▇▇▇▇▇▇ ▇▇▇▇▇▇ , counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the PurchaserIssuers, to the effect that:
(i) To The Corresponding Debt Securities and the best knowledge of such counsel there is no actionGuarantee have been duly authorized, suitexecuted, investigation or proceedingauthenticated, governmental or otherwise, pending, threatened or contemplated to which issued and delivered by the Company or either Subsidiary is or may be a party or of which the business or property and constitute valid and legally binding obligations of the Company or either Subsidiary is or entitled to the benefits and security provided by the Indenture and the Guarantee except as the same may be subject that is material limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the Company and the Subsidiaries, taken as a whole, enforcement of creditors' rights or which is required to be disclosed in the Registration Statement and the Prospectus.by general principles of equity;
(ii) The execution and delivery by Each of the Company of this Indenture, the Trust Agreement and the consummation Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock enforceable in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and accordance with its terms except as required the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the Securities Act, the Exchange Act and applicable state securities enforcement of creditors' rights or Blue Sky laws, no consent, approval, authorization or order by general principles of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.equity;
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as defined to legal matters in all material respects to the descriptions thereof contained in the Investment Company Act.Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securites, the Common Securities and the Guarantee have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement was declared has become effective under the Securities Act on the Effective Date Act, and, to the best of the knowledge of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending before the Commission or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein and the Forms T-1 of the Trustees, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act and the applicable Rules and Regulations;
(vi) This Agreement has been duly authorized, executed and delivered by the Company; and
(vii) The statements made in the Prospectus under the caption "United States Taxation," to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of Anderson, Byrd, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Issuers, counsel for the Issuers, representatives of the independent accountants of the Issuers and representatives of the Purchasers at which the contents of the Registration Statement and Prospectus, and any subsequent amendments or supplements thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto, on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Issuers), no facts have come to the attention of such counsel which lead such counsel to believe that either the Registration Statement or the Prospectus, and any subsequent amendments or supplements thereto, as of their respective effective or issue dates, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need make no comment with respect to the financial statements and other financial and statistical information included in the Registration Statement or Prospectus or any such amendments or supplements or the Forms T-1 of the Trustees).
(f) You shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Purchasers, to the effect that:
(i) The Corresponding Debt Securities and the Guarantee have been duly authorized, executed, authenticated, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits and security provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or by general principles of equity;
(ii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or by general principles of equity;
(iii) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act., and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein and the Forms T-1 of the Trustees, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act and the applicable Rules and Regulations; and
(vi) This Agreement has been duly authorized, executed and delivered by the Company. In rendering such opinion ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of Anderson, Byrd, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. referred to above. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP need not expr
Appears in 1 contract
Sources: Purchase Agreement (Empire District Electric Trust Ii)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the following terms and conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true herein included, to the performance by the Company of its obligations hereunder, and correct as if made on and as of to the following further conditions:
(a) At the Closing Date, with (i) no proceedings shall be pending or, to the same effect knowledge of the Company, threatened against the Company or any Subsidiary before or by any Federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in any Material Adverse Effect, (ii) the representations and warranties set forth in Section 1 hereof shall be accurate as if though expressly made on the at and as of such Closing Date, ; and (iii) the Company has performed complied in all covenants and material respects with all agreements and satisfied all conditions contained in this Agreement required on its part to be performed or satisfied by it at or prior to such Closing Date.
(db) No order preventing or suspending At the use of Closing Date, the Prospectus Purchaser shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
received (i) The the Amendment and the Operating Agreement, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively, duly executed by the Company has been duly organized and is validly existing as a limited liability company in good standing under the laws on behalf of the Republic existing members (via power of Panama attorney), and is duly qualified to do business the Purchaser; and is in good standing (ii) a certificate or book entry registered in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination name of the corporate existence Purchaser representing the number of Preferred Units to be purchased by the Purchaser pursuant to Section 3 (the “Preferred Units Certificate”), duly executed by the Company.
(iic) The Company has all necessary corporate power and authority and ownsAt the Closing Date, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under counsel for the laws of the Republic of Panama Purchaser shall have been furnished with such documents as it may reasonably require in order to own or lease, as evidence the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation accuracy of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property representations or assets warranties, or the fulfillment of any of the Company is subjectconditions, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults herein included; and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly all proceedings taken by the Company to authorize the execution, delivery and performance of this Agreement and that are necessary in connection with the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to Preferred Units shall be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no actionPurchaser and its counsel. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or this Agreement may be a party or of which terminated by the business or property of the Company or either Subsidiary is or may be subject that is material Purchaser by notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party, except that the provisions concerning payment of expenses under Section 5 hereof, the provisions concerning indemnification under Section 7 hereof, and the Subsidiaries, taken as a whole, or which is required provisions relating to be disclosed governing law shall remain in the Registration Statement and the Prospectuseffect.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Series B Cumulative Redeemable Preferred Unit Purchase Agreement (Shepherd's Finance, LLC)
Conditions of the Purchaser’s Obligations. The obligations of each Purchaser to consummate the Purchaser under this Agreement to purchase the Shares Closing are subject to each the satisfaction or waiver by such Purchaser on or before the Closing Date of the following terms and conditions:
(ai) On No Material Adverse Effect shall have occurred since the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.date hereof;
(bii) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on in all material respects as of the date hereof and as of the Closing Date as if made on such date with the same force and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing DateDate (other than those qualified by materiality, Material Adverse Effect or similar qualifications, which shall be true in all respects), except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of such date);
(iii) All covenants and agreements contained in this Agreement to be performed by the Company shall have been performed and complied with in all material respects;
(iv) Such Purchaser shall have received a certificate, signed by an executive officer of the same effect Company, certifying as if made on to the matters set forth in Section 8(a)(i), (ii) and (iii);
(v) As of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use none of the Prospectus following events shall have occurred and be continuing: (A) trading in the Common Stock shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests suspended by the Commission for additional information or The Nasdaq Global Select Market; or (to be included in the Registration Statement or the Prospectus or otherwiseB) a banking moratorium shall have been complied with.declared either by U.S. federal or New York State authorities (collectively, a "Market Adverse Effect");
(evi) On The Company shall have complied with the requirements of the Nasdaq Stock Market, Inc., for the listing of the Shares on The Nasdaq Global Select Market; and
(vii) Each of the Purchasers shall have timely received from the Company a Purchase Notice. In addition, the obligations of each Institutional Purchaser to consummate the Closing are subject to the satisfaction or waiver by the Monarch Holders Majority and the Oaktree Holder Majority on or before the Closing Date there shall have been furnished to of the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect thatfollowing conditions:
(i) The Company has been duly organized Registration Rights Agreement shall be in full force and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.effect;
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws Each of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted Institutional Purchasers shall have received on and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and Closing Date written evidence reasonably satisfactory to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all it of the issued shares of capital stock good standing of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇Islands, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for in writing or any standard form of telecommunication from the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge appropriate governmental authorities of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.jurisdiction;
(iii) The Company is not an “investment company” or a company “controlled” Specified Amendments shall have been executed and delivered by an “investment company” as defined all parties thereto and shall be in the Investment Company Act.full force and effect, and copies thereof shall have been delivered to each Institutional Purchaser; and
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date andLetter Agreement shall have been executed and delivered by all parties thereto and shall be in full force and effect, and a copy thereof shall have been delivered to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Acteach Institutional Purchaser.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of the each Purchaser under this Agreement to purchase and pay for the Shares are Securities is subject to each of the following terms and conditionsconditions unless waived in writing by the relevant Purchaser:
(a) On The representations and warranties made by the Company in this Agreement qualified as to materiality shall be true and correct at all times prior to and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, and, the representations and warranties made by the Company in this Agreement not qualified as to materiality shall receive subscription proceeds for shares of Common Stock sold pursuant be true and correct in all material respects at all times prior to and on the Closing Date, except to the Rights Offering extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date. The Company shall have performed in all material respects all obligations and conditions herein required to be performed or observed by it on or prior to the Subscription Agreements equal to at least $100 millionClosing Date.
(b) The representations and warranties None of the Company contained in issuance and sale of the Securities pursuant to this Agreement and in or any of the certificate delivered pursuant to Section 6(c) transactions contemplated by any of the other Basic Documents shall be true enjoined (temporarily or permanently) and correct when made no restraining order or other injunctive order shall have been issued in respect thereof; and on and as there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company's knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Closing Date as if made on such date and Securities or any Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement, the Company shall have performed all covenants and agreements and satisfied all other Basic Documents or the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing DateDisclosure Documents.
(c) The Purchaser Company shall have obtained in a timely fashion any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the purchase and sale of the Securities all of which shall be in full force and effect.
(d) The Company shall have received on (A) written notice from Nasdaq to the effect that the issuance and sale of the Securities as contemplated hereby will not require shareholder approval pursuant to the requirements of Nasdaq Marketplace Rule 4350(i), and (B) oral confirmation from Nasdaq that the Shares and the Warrant Shares shall have been approved for inclusion in The Nasdaq SmallCap Market upon official notice of issuance.
(e) The Purchasers and Placement Agent shall have received certificates, dated the Closing Date a certificate, addressed to it and dated the Closing Date, of signed by the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate paragraphs 5(a), (b), (c) and (d).
(f) The Company shall have carefully examined this Agreement and that the representations and warranties delivered a Certificate, executed on behalf of the Company contained in this Agreement are true and correct as if made on and by its Secretary, dated as of the Closing Date, with certifying the same effect as if made on resolutions adopted by the Closing Date, Board of Directors of the Company approving the transactions contemplated by this Agreement and the Company has performed all covenants other Basic Documents and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use issuance of the Prospectus shall have been or shall be in effect and no order suspending Securities, certifying the effectiveness current versions of the Registration Statement shall be in effect Certificate of Incorporation and no proceedings for such purpose shall be pending before or threatened by Bylaws of the Commission, Company and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished certifying as to the Purchaser signatures and authority of persons signing the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date Basic Documents and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence related documents on behalf of the Company.
(iig) The Company has all necessary corporate power and authority and owns, possesses On or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under before the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York AgencyClosing Date, the Representative Offices Purchasers shall have received the Registration Rights Agreement executed by the Company and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are agreement shall be in full force and effect at all times from and neither after the Company nor either Subsidiary has received any notice of proceedings relating Closing Date, subject to any revocation or modification thereofthe Enforceability Exceptions.
(iiih) The Company’s capitalization is as set forth in the Prospectus, Purchasers and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there Placement Agent shall have been furnished to the Purchaser the received an opinion of ▇▇▇▇▇▇▇▇ , Phleger & ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇LLP, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for to the Company, dated in the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:attached hereto as Exhibit E.
(i) To No stop order or suspension of trading shall have been imposed by Nasdaq, the best knowledge of such counsel there is no action, suit, investigation Commission or proceeding, any other governmental or otherwise, pending, threatened or contemplated regulatory body with respect to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed public trading in the Registration Statement and the ProspectusCommon Stock.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Subscription Agreement (Odetics Inc)
Conditions of the Purchaser’s Obligations. The obligations of each Purchaser to consummate the Purchaser under this Agreement to purchase the Shares Closing are subject to each the satisfaction or waiver by such Purchaser on or before the Closing Date of the following terms and conditions:
(ai) On No Material Adverse Effect shall have occurred since the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.date hereof;
(bii) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on in all material respects as of the date hereof and as of the Closing Date as if made on such date with the same force and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing DateDate (other than those qualified by materiality, Material Adverse Effect or similar qualifications, which shall be true in all respects), except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of such date);
(iii) All covenants and agreements contained in this Agreement to be performed by the Company shall have been performed and complied with in all material respects;
(iv) Such Purchaser shall have received a certificate, signed by an executive officer of the same effect Company, certifying as if made on to the matters set forth in Section 8(a)(i), (ii) and (iii);
(v) As of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use none of the Prospectus following events shall have occurred and be continuing: (A) trading in the Common Stock shall have been suspended by the Commission or The NASDAQ Global Select Market; or (B) a banking moratorium shall have been declared either by U.S. federal or New York State authorities (collectively, a “Market Adverse Effect”);
(vi) The Company shall have complied with the requirements of The NASDAQ Stock Market LLC, for the listing of the Shares on The NASDAQ Global Select Market;
(vii) Each of the Purchasers shall have timely received from the Company a Purchase Notice;
(viii) The Registration Rights Agreement shall be in effect full force and no order suspending effect;
(ix) The Company shall have approved the effectiveness of Tax Benefits Preservation Agreement Exemption Request attached as Exhibit A hereto in accordance with the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included procedures set forth in the Registration Statement or the Prospectus or otherwiseTax Benefits Preservation Agreement;
(x) The Note Purchase Agreement and all principal transaction documents related thereto shall have been complied with.executed by the applicable parties and the initial closing of the transactions contemplated by the Note Purchase Agreement have been completed prior to Closing;
(exi) On Each of the Purchasers shall have received on and as of the Closing Date there written evidence reasonably satisfactory to it of the good standing of the Company in the State of Delaware, in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdiction;
(xii) Such Purchaser shall have been furnished to received on the Purchaser the Closing Date an opinion of ▇▇▇▇▇, counsel of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for Procter LLP in the Company, dated the Closing Date form attached as Exhibit B hereto;
(xiii) All fees and in form and substance satisfactory to counsel for the Purchaser, expenses incurred on or prior to the effect that:date of Closing and required to be paid or reimbursed by the Company pursuant to Section 6(b)(v) hereof shall be paid concurrently with the Closing; and
(xiv) No event shall have occurred which constitutes a trigger event under (i) The any control share acquisition, interested stockholder, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation, By-Laws or other organizational documents of the Company has been duly organized and is validly existing as a limited liability company in good standing under or the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets incorporation or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses under any stockholder rights plan or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws similar arrangement relating to accumulations of beneficial ownership of shares of Common Stock or a change in control of the Republic Company or any of Panama in order to own or leaseits Subsidiaries, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, including without limitation, with respect to the operation of the New York AgencyTax Benefits Preservation Agreement, the Representative Offices unless such trigger event has been waived and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth will not result in the Prospectus, and all issuance of the issued any shares of capital stock of the Company have been duly and validly authorized and issuedCompany, are fully paid and non-assessable and conform to or options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, securities convertible into or exchangeable for capital stock of the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counselCompany, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule agreements or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition rights to purchase or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations otherwise acquire capital stock of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations hereunder of the Purchaser under this Agreement to purchase shall not become effective until the Shares are subject to date on which each of the following terms and conditions:conditions is satisfied (or waived in accordance with Section 7.02):
(a) On the Closing Date, Purchaser shall have received from the Company shall receive subscription proceeds for shares a counterpart of Common Stock sold pursuant to this Agreement signed on behalf of the Rights Offering and the Subscription Agreements equal to at least $100 million.Company;
(b) The representations the Company shall have delivered (x) the certificate or certificates representing the Shares and warranties (y) the Warrant Certificate;
(c) the Company shall have filed the Registration Statement with the SEC;
(d) the Company shall have paid to the Purchaser $7,500 to cover legal expenses in connection with due diligence and the preparation, negotiation and review of the Company contained Transaction Documents;
(e) the Purchaser shall have received a satisfactory legal opinion (addressed to the Purchaser and dated the Closing Date) of Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for the Company, reasonably satisfactory to the Purchaser, in substantially the form attached hereto as Exhibit B;
(f) the Purchaser shall have received such documents and certificates as it or its counsel may reasonably request relating to the organization, existence and good standing of the Company, the authorization of the transactions contemplated in this Agreement and the other Transaction Documents and any other legal matters relating to the Company, this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby, all in form and substance satisfactory to the certificate delivered pursuant Purchaser and its counsel;
(g) all other permits, consents, approvals, licenses, orders or authorizations of, and registrations, declarations and filings with, any Governmental Authority, if any that are required to Section 6(cbe obtained or made in connection with (i) shall be true the execution, delivery or performance of this Agreement and correct when made and on and as the other Transaction Documents by the Company or the consummation by the Company of any of the transactions contemplated hereby and thereby, and (ii) the conduct by the Company or the Purchaser of their respective businesses following the Closing Date as if made conducted on such the date and hereof shall have been duly obtained or made;
(h) the Company shall have performed and complied with all covenants and agreements and satisfied all the conditions contained in this Agreement herein required to be performed or satisfied complied with by it at the Company on or before the Closing (including the agreements set forth in Section 6.03 hereof) and shall, if so requested by the Purchaser, provide reasonable evidence of such Closing Date.compliance;
(ci) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in under this Agreement are shall be true and correct as if made on and in all material respects; the Purchaser shall have received from the Financial Officer a certificate, dated as of the Closing Date, with the same effect as if though made on and as of the Closing Date, stating that the representations and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock warranties of the Company have been duly and validly authorized and issued, under this Agreement are fully paid and non-assessable and conform to the description thereof contained true in the Prospectus.all material respects; and
(ivj) To the best knowledge of such counsel, the Company is not all corporate and other proceedings and actions taken in violation of or conflict connection with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (includingall certificates, without limitationopinions, the offeringagreements, issuance instruments and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with documents mentioned herein or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or incident to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not such transaction shall be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Purchaser and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectusits counsel.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ribozyme Pharmaceuticals Inc)
Conditions of the Purchaser’s Obligations. The obligations obligation of the each Purchaser under this Agreement to purchase and pay for the Shares are Securities at each Closing Date is subject to each of the following terms and conditionsconditions unless waived in writing by the Purchaser:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Date. The Company shall have performed complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such prior to the Closing Date.
(b) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company’s knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Securities or any Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement, the other Transaction Documents or the SEC Documents.
(c) The Purchaser Purchasers shall have received on certificates, dated the Closing Date a certificate, addressed to it and dated signed by the Closing Date, of the chief executive or chief operating officer Chief Executive Officer and the chief financial officer or chief accounting officer Chief Financial Officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement Sections 5(a) and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date(b).
(d) No order preventing or suspending The Purchasers shall have received an opinion of legal counsel to the use Company, with respect to the authorization of the Prospectus shall have been or shall be in effect Shares and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included other customary matters in the Registration Statement or the Prospectus or otherwise) shall have been complied with.form attached hereto as Exhibit C.
(e) On The $5,338,000 in principal amount of outstanding promissory notes advanced to the Closing Date there Company from July 2007 to February 2008, together with accrued interest (the “Earlier Notes”), shall have been furnished tendered, pursuant to that certain Securities Subscription Agreement dated as of June 4, 2008 by and among the Company and holders of Series A Preferred Stock, in exchange for shares of Series A Preferred Stock having such rights, preferences and privileges as set forth in the Certificate of Designations of Series A Preferred Stock as filed with the Secretary of State of the State of Delaware (the “Series A Certificate of Designations” and, together with the Series B Certificate of Designations, the “Certificates of Designations”) in the form attached hereto as Exhibit A-2, as more specifically set forth in Schedule II. All holders surrendering Earlier Notes shall have waived any anti-dilution, participation and other rights such holders may have, if any, in connection with the transactions contemplated hereby.
(f) The holders of rights to receive $1,200,000 of shares of Series A Preferred Stock of the Company pursuant to subscription agreements entered into in April 2008 and May 2008 (the “Old Series A Stock”), as more specifically set forth in Schedule I, shall have waived all rights to receive such Old Series A Stock, in exchange for 60,000,000 Shares of Series B-1 Stock pursuant to this Agreement. All Purchasers surrendering rights to Old Series A Stock shall have waived any anti-dilution, participation and other rights such Purchasers may have, if any, in connection with the transactions contemplated hereby.
(g) The holders of $800,000 in principal amount of promissory notes issued in February 2008 and March 2008, together with any associated warrants (the “Recent Notes and Warrants” and, together with the Earlier Notes, the Old Series A Stock and any warrants issued in connection therewith, the “Prior Securities”), as more specifically set forth in Schedule I, shall have tendered such notes and warrants representing the Recent Notes and Warrants in exchange for 40,000,000 Shares of Series B-1 Stock pursuant to this Agreement. All Purchasers surrendering Recent Notes and Warrants shall have waived any anti-dilution, participation and other rights such Purchaser may have in connection with the opinion transactions contemplated hereby.
(h) The holders of ▇▇▇▇▇$1,200,000 in principal amount of promissory notes entered into in May 2008 (the “Recent Promissory Notes”), ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇as more specifically set forth in Schedule I, Panamanian counsel shall have tendered such promissory notes in exchange for the Company, dated the Closing Date and in form and substance satisfactory 60,385,275 Shares of Series B-1 Stock pursuant to counsel for the Purchaser, to the effect that:this Agreement.
(i) The Company has Series A Certificate of Designations and the Series B Certificate of Designations shall have been duly organized and is validly existing as a limited liability company in good standing under filed with the laws Secretary of State of the Republic State of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, Delaware. Prior to the best knowledge Second Closing Date, the Company’s certificate of such counsel, but without inquiry, incorporation and the Series B Certificate of Designations shall have been amended to authorize and designate additional shares of Series B Stock in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama an amount sufficient to allow for the dissolution or termination full amount of the corporate existence of Series B Stock contemplated to be issued on the Company.Second Closing Date under Section 3(c) hereof ..
(iij) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as As further described in the Prospectus (includingInvestor Rights Agreement, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇D▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇T▇▇ ▇▇▇▇▇▇ counsel for and a representative of Trident Capital (the “Investor Designees”) shall be elected to the Board of Directors of the Company, dated with T▇▇ ▇▇▇▇▇▇ as Chairman of the Closing Date Board of Directors. Three existing members of the Board of Directors shall have resigned from the Board of Directors, leaving four prior members and in form the Investor Designees on the Board of Directors. Each Investor Designee shall be entitled to serve on any committee of the Board of Directors, subject to compliance with applicable securities laws and substance satisfactory to counsel for the Purchaser, rules and regulations of the applicable exchange on which the Company’s common stock are then quoted or traded. Each Investor Designee shall execute a director indemnification agreement upon election to the effect that:
(i) To the best knowledge Board of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the ProspectusDirectors.
(iik) As further described in the Investor Rights Agreement, the Company shall have agreed that one of the four prior members of the Board of Directors shall resign at such time as requested by holders of a majority of the outstanding shares of Series B Stock to permit election of a new seventh member of the Board of Directors approved by a majority of the remainder of the Board of Directors.
(l) The execution and delivery by Lead Investors shall be satisfied, in their sole discretion, with the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any results of their respective properties, due diligence investigation with respect to the Company.
(m) The Company shall have received all necessary governmental and except as required by third party consents and approvals.
(n) The Company shall have received full subscription of at least $5,500,000 of Series B-1 Stock to be issued at the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by Initial Closing pursuant to this Agreement.
(iiio) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Actshall have complied with all applicable securities laws.
(ivp) The Registration Statement was declared effective under Company shall have amended its certificate of incorporation and bylaws as necessary to give effect to the provisions set forth herein or in the Transaction Documents.
(q) The Company shall have executed and delivered to the Purchasers the Investor Rights Agreement.
(r) The Company shall have furnished to the Lead Investors a certificate from the transfer agent of the Securities, certifying as to the outstanding securities of the Company.
(s) On or prior to the Closing Date, the Company shall have furnished to the Lead Investors such additional information, certificates and documents as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities Act on as contemplated herein, or to evidence the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness accuracy of any of the Registration Statement has been issued representations or warranties, or the fulfillment of any of the conditions, herein contained, or otherwise in connection with the transaction contemplated hereby; and no proceedings for that purpose are pending before all opinions and certificates mentioned above or elsewhere in this Agreement shall be reasonably satisfactory in form and substance to the Commission under the Securities ActLead Investors.
Appears in 1 contract
Sources: Securities Subscription Agreement (Eco2 Plastics Inc)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement Purchasers to purchase and pay for the Shares are Purchasers' Debt Securities shall be subject in their discretion to each the accuracy of and compliance in all material respects with the representations and the warranties of the Company herein contained as of the date hereof and the Closing Date, to the performance by the Company of its obligations hereunder and to the following terms and additional conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no have been issued under the Act or proceedings for such purpose shall be pending before therefor initiated or threatened by the Commission, and any requests by Commission prior to the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied withClosing Date.
(eb) On You shall have received an opinion, dated the Closing Date there shall have been furnished to the Purchaser the opinion Date, of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian Kansas counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized incorporated and is validly existing as a limited liability company corporation in good standing under the laws of the Republic State of Panama Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus;
(ii) The Purchasers' Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or by general principles of equity;
(iii) The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or by general principles of equity;
(iv) The Indenture and the Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Debt Securities have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale and delivery of the Purchased Debt Securities or the execution, delivery and performance by the Company of the Securities Resolution, the Purchased Debt Securities, any Delayed Delivery Contracts or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state);
(vi) Neither the issuance, sale and delivery of the Purchased Debt Securities nor the execution, delivery and performance by the Company of this Agreement, any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(vii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C., Missouri counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; and the Company is duly qualified to do business and is as a foreign corporation in good standing in the Republic States of Panama andArkansas, to Missouri and Oklahoma, which are the best knowledge of such counsel, but without inquiry, only jurisdictions (other than Kansas) in each other jurisdiction which it owns or leases substantial properties or in which the character or location of its assets or properties (owned, leased or licensed) or the nature conduct of its business makes requires such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.qualification;
(ii) The Company has holds all the valid and subsisting franchises which are necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under to authorize it to carry on the laws of the Republic of Panama utility businesses in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and which it is engaged as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.Prospectus;
(iii) The Company’s capitalization is as set forth in the Prospectus, This Agreement and all of the issued shares of capital stock of the Company any Delayed Delivery Contracts have been duly authorized, executed and validly authorized and issued, are fully paid and non-assessable and conform to delivered by the description thereof contained in the Prospectus.Company;
(iv) To Neither the best knowledge of such counselissuance, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents sale and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation delivery of the Republic of Panama where Purchased Debt Securities nor the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares this Agreement, any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in breach of Common Stock in any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Rights Offering) will not Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws of any jurisdiction), conflict with or result in the a breach of any term of the terms, conditions or provision ofprovisions of the Restated Articles of Incorporation, as amended, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) underBy-Laws, or require any consent or waiver underas amended, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, or of any material agreement, indenture, agreement or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property properties or assets of the Company is subjectCompany;
(v) Relying as to materiality to a large extent upon the statements and opinions of representatives of the Company, such counsel have no reason to believe that either the Registration Statement or the Prospectus, or any amendment or supplement thereto, as of their respective effective or issue dates and, with respect to the Prospectus, also as of the Closing Date, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein not misleading; the descriptions in the Registration Statement and Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor will of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K which are not described and filed as so required; it being understood that such actions violate counsel need express no opinion as to the charter or by-laws financial statements or other governing document of financial or statistical information contained in the Registration Statement or the Prospectus; and
(vi) Other than disclosed or contemplated by the Registration Statement and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any applicable lawof its officers is a party or of which any of its properties is subject, rule or administrative regulation of at law or in the Republic of Panamaequity, or before or by any decree known federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to such counsel of any court result in a Material Adverse Effect or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the prevent consummation of the transactions contemplated hereby and thereby (including without limitation hereby. In rendering such opinion, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. may rely, as to the offering, issuance and sale by incorporation of the Company and all matters governed by Kansas law, upon the opinion of shares ▇▇▇▇▇▇▇▇ & ▇▇▇▇ referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Common Stock ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in the Rights Offering)paragraph (d) below.
(ixd) All necessary corporate action has been duly You shall have received an opinion, dated the Closing Date, of Brydon, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the Company, to the effect that no approval, authorization, consent or other order of any public board or body in the States of Missouri, Oklahoma or Arkansas is legally required for the issuance, sale and validly taken by delivery of the Company to authorize Purchased Debt Securities or the execution, delivery and performance by the Company of the Securities Resolution, the Purchased Debt Securities, this Agreement and or any Delayed Delivery Contract (it being understood that such counsel need express no opinion as to any approvals which may be required under the issuance and sale securities acts or Blue Sky laws of the Shares. This Agreement has been duly and validly executed and delivered by the Companyany jurisdiction).
(xe) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on You shall have received an opinion, dated the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gainsDate, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no actionThe Purchasers' Debt Securities have been duly authorized, suitexecuted, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which issued and delivered by the Company or either Subsidiary is or may be a party or of which and constitute, and the business or property Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company or either Subsidiary is or entitled to the benefits provided by the Indenture except as the same may be subject that is material limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the Company and the Subsidiaries, taken as a whole, enforcement of creditors' rights or which is required to be disclosed in the Registration Statement and the Prospectus.by general principles of equity;
(ii) The execution Indenture has been duly authorized, executed and delivery delivered by the Company of this Agreement Company, has been duly qualified under the Trust Indenture Act and the consummation constitutes a valid and legally binding instrument of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock enforceable in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and accordance with its terms except as required the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the Securities Act, the Exchange Act and applicable state securities enforcement of creditors' rights or Blue Sky laws, no consent, approval, authorization or order by general principles of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.equity;
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” Indenture and the Purchased Debt Securities conform as defined to legal matters in all material respects to the descriptions thereof contained in the Investment Company Act.Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement was declared has become effective under the Securities Act on the Effective Date Act, and, to the best of the knowledge of such counsel’s knowledgecounsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending before the Commission or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein and the Forms T-1, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act and the applicable Rules and Regulations; and
(vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company. In rendering such opinion ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of ▇▇▇▇▇▇▇▇ & ▇▇▇▇; ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company, counsel for the Company, representatives of the independent accountants of the Company and representatives of the Purchasers at which the contents of the Registration Statement and Prospectus, and any subsequent amendments or supplements thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto (other than to the extent set forth in paragraph (iii) above), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts have come to the attention of such counsel which lead such counsel to believe that the Registration Statement, and any subsequent amendments thereto, at the time they became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and no facts have come to the attention of such counsel which lead such counsel to believe that the Prospectus, and any subsequent amendment or supplement thereto, as of its date and as of the Closing Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need make no comment with respect to the financial statements and other financial and statistical information included in or incorporated by reference in the Registration Statement or Prospectus or any such amendments or supplements or the Forms T-1).
(f) You shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Purchasers, to the effect that:
(i) The Purchasers' Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or by general principles of equity;
(ii) The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or by general principles of equity;
(iii) The Indenture and the Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act., and, to the best of the knowledge of such counsel (after inquiry), no stop order suspending the effectiveness of the R
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase and pay for the Shares are Series 2023 Bonds will be subject to the accuracy of the representations and warranties on the part of the Issuer herein, to the performance by the Issuer and the Company of their respective obligations hereunder and to the following additional conditions precedent:
(A) The Ordinance, the Indenture, the Base Lease and the Lease shall have been duly authorized and executed by the respective parties thereto in the form hereto before approved by the Purchaser and shall be in full force and effect and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Purchaser.
(B) At the Closing Time, the Purchaser shall receive in form and substance satisfactory to it:
(i) the opinion of Bond Counsel approving the issuance and delivery of the Series 2023 Bonds;
(ii) the opinion of counsel for each of the following terms entities constituting the Company (acting as counsel to the Company, as the tenant under the Lease and conditionsto the Purchaser, as purchaser under this Agreement), that the Lease and this Agreement constitute valid and legal binding obligations of the Company and the Purchaser, as applicable;
(iii) a certificate or certificates, satisfactory in form and substance to Bond Counsel and the Company, of an authorized official of the Issuer dated the date of closing to the effect that, to the best of such official’s knowledge and belief:
(a) On each of the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained Issuer set forth in this Agreement Section 1 hereof is true, accurate and complete in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and all material respects as of the Closing Date as if made on such date Time, and each of the Company shall have performed all covenants and agreements and satisfied all of the conditions contained Issuer set forth in this Agreement required to be performed or satisfied by it complied with at or before prior to the Closing Time has been complied with as of such Closing Date.time; and
(cb) The Purchaser shall have received on no litigation is pending, or to such official’s knowledge threatened, to restrain or enjoin the Closing Date a certificateissuance, addressed to it and dated the Closing Dateexecution, sale or delivery of the chief executive Series 2023 Bonds or chief operating officer and contesting the chief financial officer issuance or chief accounting officer the validity of the CompanySeries 2023 Bonds, to the effect that Ordinance, the signers of such certificate have carefully examined Indenture, the Base Lease, the Lease, or this Agreement and that none of the proceedings or authority for the issuance of the Series 2023 Bonds has been repealed, revoked or rescinded;
(iv) certified conformed copies or manually executed counterparts of the Ordinance, the Indenture, the Base Lease and the Lease;
(v) A certificate or certificates, satisfactory in form and substance to Bond Counsel and the Purchaser, of an authorized representative of the Company dated the date of closing to the effect that:
(a) each of the representations and warranties of the Company set forth in Section 2 hereof is true, accurate and complete in all material respects as of the Closing Time, and each of the agreements of the Company set forth in this Agreement to be complied with at or prior to the Closing Time has been complied with as of such time; and
(b) insofar as the signers of such certificate or certificates are aware, after reasonable investigation, since the date of this Agreement, there has been no material adverse change in the property or financial position of the Company or results of operation of the Company; and
(c) no litigation is pending, or to the knowledge of the Company threatened, to restrain or enjoin the issuance, execution, sale or delivery of the Series 2023 Bonds or in any way contesting or affecting any authority for issuance or the validity of the Series 2023 Bonds, the Base Lease, the Lease or this Agreement or the creation, existence, or powers of the Company to lease the Project; and
(vi) such additional certificates, opinions, or documents as the Purchaser may reasonably request to evidence the due satisfaction at or prior to such time of all conditions then to be satisfied in connection with the transactions contemplated hereby. If the conditions to the obligations of the Purchaser contained in this Agreement are true and correct as not satisfied or if made on and as the obligations of the Closing DatePurchaser shall be terminated for any reason permitted by this Agreement, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect terminate and neither the Company Purchaser nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there Issuer shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectusany further obligations hereunder.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of the Purchaser’s Obligations. The obligations of each Purchaser to consummate the Purchaser under this Agreement to purchase the Shares Closing are subject to each the satisfaction or waiver by such Purchaser on or before the Closing Date of the following terms and conditions:
(ai) On No Material Adverse Effect shall have occurred since the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.date hereof;
(bii) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on in all material respects as of the date hereof and as of the Closing Date as if made on such date with the same force and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing DateDate (other than those qualified by materiality, Material Adverse Effect or similar qualifications, which shall be true in all respects), except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of such date);
(iii) All covenants and agreements contained in this Agreement to be performed by the Company shall have been performed and complied with in all material respects;
(iv) Such Purchaser shall have received a certificate, signed by an executive officer of the same effect Company, certifying as if made on to the matters set forth in Section 8(a)(i), (ii) and (iii);
(v) As of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use none of the Prospectus following events shall have occurred and be continuing: (a) trading in the Common Stock shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests suspended by the Commission for additional information (to be included in the Registration Statement or the Prospectus NASDAQ Capital Market; or otherwise(b) a banking moratorium shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character declared either by U.S. federal or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York AgencyState authorities (collectively, the Representative Offices and the Subsidiariesa "Market Adverse Effect"); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.;
(vi) The Shares to be issued and sold by Company shall have complied with the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder requirements of the Company.Nasdaq Stock Market, Inc., for the listing of the Shares on The Nasdaq Global Select Market; and
(vii) The execution, delivery and performance Each of this Agreement and the other Subscription Agreements by Purchasers shall have timely received from the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a wholePurchase Notice.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required The Registration Rights Agreement shall be in connection with the execution full force and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).effect; and
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale Each of the Shares. This Agreement has been duly Purchasers shall have received on and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on as of the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf written evidence reasonably satisfactory to it of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property good standing of the Company is in the state of Nevada, in writing or may be subject that is material to any standard form of telecommunication from the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge appropriate governmental authorities of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectusjurisdiction.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase and pay for the Shares are Series 2024 Bonds will be subject to the accuracy of the representations and warranties on the part of the Issuer herein, to the performance by the Issuer and the Company of their respective obligations hereunder and to the following additional conditions precedent:
(A) The Ordinance, the Indenture and the Lease shall have been duly authorized and executed by the respective parties thereto in the form hereto before approved by the Purchaser and shall be in full force and effect and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Purchaser.
(B) At the Closing Time, the Purchaser shall receive in form and substance satisfactory to it:
(i) the opinion of Bond Counsel approving the issuance and delivery of the Series 2024 Bonds;
(ii) the opinion of counsel for each of the following terms entities constituting the Company (acting as counsel to the Company, as the tenant under the Lease and conditionsto the Purchaser, as purchaser under this Agreement), that the Lease and this Agreement constitute valid and legal binding obligations of the Company and the Purchaser, as applicable;
(iii) a certificate or certificates, satisfactory in form and substance to Bond Counsel and the Company, of an authorized official of the Issuer dated the date of closing to the effect that, to the best of such official’s knowledge and belief:
(a) On each of the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained Issuer set forth in this Agreement Section 1 hereof is true, accurate and complete in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and all material respects as of the Closing Date as if made on such date Time, and each of the Company shall have performed all covenants and agreements and satisfied all of the conditions contained Issuer set forth in this Agreement required to be performed or satisfied by it complied with at or before prior to the Closing Time has been complied with as of such Closing Date.time; and
(cb) The Purchaser shall have received on no litigation is pending, or to such official’s knowledge threatened, to restrain or enjoin the Closing Date a certificateissuance, addressed to it and dated the Closing Dateexecution, sale or delivery of the chief executive Series 2024 Bonds or chief operating officer and contesting the chief financial officer issuance or chief accounting officer the validity of the CompanySeries 2024 Bonds, to the effect that Ordinance, the signers of such certificate have carefully examined Indenture, the Lease, or this Agreement and that none of the proceedings or authority for the issuance of the Series 2024 Bonds has been repealed, revoked or rescinded;
(iv) certified conformed copies or manually executed counterparts of the Ordinance, the Indenture and the Lease;
(v) A certificate or certificates, satisfactory in form and substance to Bond Counsel and the Purchaser, of an authorized representative of the Company dated the date of closing to the effect that:
(a) each of the representations and warranties of the Company set forth in Section 2 hereof is true, accurate and complete in all material respects as of the Closing Time, and each of the agreements of the Company set forth in this Agreement to be complied with at or prior to the Closing Time has been complied with as of such time; and
(b) insofar as the signers of such certificate or certificates are aware, after reasonable investigation, since the date of this Agreement, there has been no material adverse change in the property or financial position of the Company or results of operation of the Company; and
(c) no litigation is pending, or to the knowledge of the Company threatened, to restrain or enjoin the issuance, execution, sale or delivery of the Series 2024 Bonds or in any way contesting or affecting any authority for issuance or the validity of the Series 2024 Bonds, the Lease or this Agreement or the creation, existence, or powers of the Company to lease the Project; and
(vi) such additional certificates, opinions, or documents as the Purchaser may reasonably request to evidence the due satisfaction at or prior to such time of all conditions then to be satisfied in connection with the transactions contemplated hereby. If the conditions to the obligations of the Purchaser contained in this Agreement are true and correct as not satisfied or if made on and as the obligations of the Closing DatePurchaser shall be terminated for any reason permitted by this Agreement, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect terminate and neither the Company Purchaser nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there Issuer shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectusany further obligations hereunder.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of the Purchaser’s Obligations. The obligations of each Purchaser to consummate the Purchaser under this Agreement to purchase the Shares Closing are subject to each the satisfaction or waiver by such Purchaser on or before the Closing Date of the following terms and conditions:
(ai) On No Material Adverse Effect shall have occurred since the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.date hereof;
(bii) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on in all material respects as of the date hereof and as of the Closing Date as if made on such date with the same force and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing DateDate (other than those qualified by materiality, Material Adverse Effect or similar qualifications, which shall be true in all respects), except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of such date);
(iii) All covenants and agreements contained in this Agreement to be performed by the Company shall have been performed and complied with in all material respects;
(iv) Such Purchaser shall have received a certificate, signed by an executive officer of the same effect Company, certifying as if made on to the matters set forth in Section 8(a)(i), (ii) and (iii);
(v) As of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use none of the Prospectus following events shall have occurred and be continuing: (A) trading in the Common Stock shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests suspended by the Commission for additional information or The Nasdaq Global Select Market; or (to be included in the Registration Statement or the Prospectus or otherwiseB) a banking moratorium shall have been complied with.declared either by U.S. federal or New York State authorities (collectively, a “Market Adverse Effect”);
(evi) On The Company shall have complied with the requirements of the Nasdaq Stock Market, Inc., for the listing of the Shares on The Nasdaq Global Select Market; and
(vii) Each of the Purchasers shall have timely received from the Company a Purchase Notice. In addition, the obligations of each Institutional Purchaser to consummate the Closing are subject to the satisfaction or waiver by the Monarch Holders Majority and the Oaktree Holder Majority on or before the Closing Date there shall have been furnished to of the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect thatfollowing conditions:
(i) The Company has been duly organized Registration Rights Agreement shall be in full force and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.effect;
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws Each of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted Institutional Purchasers shall have received on and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and Closing Date written evidence reasonably satisfactory to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all it of the issued shares of capital stock good standing of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇Islands, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for in writing or any standard form of telecommunication from the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge appropriate governmental authorities of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.jurisdiction;
(iii) The Company is not an “investment company” or a company “controlled” Specified Amendments shall have been executed and delivered by an “investment company” as defined all parties thereto and shall be in the Investment Company Act.full force and effect, and copies thereof shall have been delivered to each Institutional Purchaser; and
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date andLetter Agreement shall have been executed and delivered by all parties thereto and shall be in full force and effect, and a copy thereof shall have been delivered to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Acteach Institutional Purchaser.
Appears in 1 contract
Sources: Purchase Agreement (Monarch Alternative Capital LP)
Conditions of the Purchaser’s Obligations. The obligations obligation of the each Purchaser under this Agreement to purchase and pay for the Shares are Securities is subject to each of the following terms and conditionsconditions unless waived in writing by the Purchaser:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made in all material respects (other than representations and warranties with a Material Adverse Effect qualifier, which shall be true and correct as written) on and as of the Closing Date as if made on such date and Date; the Company shall have performed complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such prior to the Closing Date.
(b) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company's knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Securities or any Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement, the other Transaction Documents or the Disclosure Documents.
(c) The Purchaser Purchasers shall have received on certificates, dated the Closing Date a certificate, addressed to it and dated signed by the Closing Date, of the chief executive or chief operating officer Chief Executive Officer and the chief financial officer or chief accounting officer Chief Financial Officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement paragraphs 5(a) and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date(b).
(d) No order preventing or suspending The Purchasers shall have received an opinion of Eric P. Littman, P.A. with respect to the use authorization of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of S▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇the Conversion Shares, Panamanian counsel for the Company, dated Warrants and the Closing Date Warrant Shares and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing other customary matters in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, form attached hereto as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.Exhibit C.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the following terms and conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained herein included, to the performance by the Company of its obligations hereunder, and to the following further conditions:
(a) At each Closing Date, (i) no proceedings shall be pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary before or by any Federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in this Agreement are true any Material Adverse Effect, (ii) the representations and correct warranties set forth in Section 1 hereof shall be accurate as if though expressly made on at and as of the each such Closing Date, with the same effect as if made on the Closing Date, ; and (iii) the Company has performed complied in all covenants and material respects with all agreements and satisfied all conditions contained in this Agreement required on its part to be performed or satisfied by it at or prior to such Closing Date.
(db) No order preventing or suspending At the use initial Closing Date, the Purchaser shall have received the Amendment and the Operating Agreement, respectively, duly executed by the Company and on behalf of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness existing members (via power of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commissionattorney), and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied withPurchaser.
(ec) On At each Closing Date, counsel for the Closing Date there Purchaser shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing with such documents as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama it may reasonably require in order to own or lease, as evidence the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation accuracy of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property representations or assets warranties, or the fulfillment of any of the Company is subjectconditions, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults herein included; and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly all proceedings taken by the Company to authorize the execution, delivery and performance of this Agreement and that are necessary in connection with the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to Preferred Units shall be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no actionPurchaser and its counsel. If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or this Agreement may be a party or of which terminated by the business or property of the Company or either Subsidiary is or may be subject that is material Purchaser by notice to the Company at any time at or prior to the Closing Date, and such termination shall be without liability of any party to any other party, except that the provisions concerning payment of expenses under Section 4 hereof, the provisions concerning indemnification under Section 6 hereof, and the Subsidiaries, taken as a whole, or which is required provisions relating to be disclosed governing law shall remain in the Registration Statement and the Prospectuseffect.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the following terms and conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaserherein included, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation Partnership of their respective obligations hereunder, and to the transactions contemplated hereby and thereby following further conditions:
(including, without limitationa) At the Closing Time, the offering, issuance and sale by Purchaser shall have received the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events favorable opinion dated as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counselClosing Date, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company and the Partnership, in such form and substance reasonably satisfactory to the Purchaser.
(b) At the Closing Time, (1) there shall not have been, since the respective dates as of which information is given in the SEC Filings, any Material Adverse Change from that set forth in the SEC Filings, (2) no proceedings shall be pending or, to the knowledge of the Company or the Partnership, threatened against the Company, the Partnership, or any Subsidiary before or by any Federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in any Material Adverse Change other than as set forth in the SEC Filings, (3) the representations and warranties set forth in Section 1 hereof shall be accurate as though expressly made at and as of such Closing Time; and (4) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such Closing Time. The Purchaser shall have received, at the Closing Time, a certificate executed by the President or Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the Closing Date Date, evidencing compliance with the provisions of this subsection (b) and additionally stating that the conditions precedent set forth in form this Section 7 have been satisfied.
(c) The First Deluxe Closing shall have been consummated, or shall be consummated substantially concurrently with the Closing Date.
(d) Any request for additional information on the part of the staff of the Commission or any state securities authorities regarding the Shares, any Exchange Securities or the transactions contemplated by this Agreement or any Registration Statement shall have been complied with to the satisfaction of the staff of the Commission or such authorities.
(e) The Company shall provide a list of the jurisdictions in which the Company and substance satisfactory each Subsidiary set forth on Schedule I hereto is qualified or registered as a foreign corporation, partnership, limited liability company or other entity, as applicable (the “Foreign Qualification Schedule”).
(f) Prior to the Closing Time, counsel for the PurchaserPurchaser shall have been furnished with such documents and opinions as it may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares or Exchange Securities as herein contemplated and related proceedings, or in order to evidence the effect that:
(i) To accuracy of any of the best knowledge representations or warranties, or the fulfillment of such counsel there is no actionany of the conditions, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which herein included; and all proceedings taken by the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject Partnership that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required are necessary in connection with the issuance and sale of the Shares by shall be reasonably satisfactory in form and substance to the Company Purchaser and the consummation of the other transactions contemplated by this Agreementits counsel.
(iiig) The Company is not an At the Closing Time, no event shall have occurred that shall constitute a “investment company” or a company “controlled” by an “investment companyMaterial Adverse Change” as defined in the Investment Deluxe Acquisition Agreement. If any condition specified in this Section 7 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Purchaser by notice to the Company Actat any time at or prior to the Closing Time, and such termination shall be without liability of any party to any other party, except that the indemnity and contribution agreements set forth in Section 6(h), Section 9 and Section 10 hereof, the provisions concerning payment of expenses under Section 5 hereof and the provisions relating to governing law shall remain in effect.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Purchase Agreement (CubeSmart, L.P.)
Conditions of the Purchaser’s Obligations. The obligations hereunder of the Purchaser under this Agreement to purchase shall not become effective until the Shares are subject to date on which each of the following terms and conditions:conditions is satisfied (or waived in accordance with Section 7.02):
(a) On the Closing Date, Purchaser shall have received from the Company shall receive subscription proceeds for shares a counterpart of Common Stock sold pursuant to this Agreement signed on behalf of the Rights Offering and the Subscription Agreements equal to at least $100 million.Company;
(b) The representations the Company shall have delivered (x) the certificate or certificates representing the Shares and warranties (y) the Warrant Certificate;
(c) the Company shall have filed the Registration Statement with the SEC;
(d) the Company shall have paid to the Purchaser $7,500 to cover legal expenses in connection with due diligence and the preparation, negotiation and review of the Company contained Transaction Documents;
(e) the Purchaser shall have received a satisfactory legal opinion (addressed to the Purchaser and dated the Closing Date) of Stroock & Stroock & Lavan LLP, counsel for the Company, reasonably satisf▇▇▇▇▇y to the Purchaser, in substantially the form attached hereto as Exhibit B;
(f) the Purchaser shall have received such documents and certificates as it or its counsel may reasonably request relating to the organization, existence and good standing of the Company, the authorization of the transactions contemplated in this Agreement and the other Transaction Documents and any other legal matters relating to the Company, this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby, all in form and substance satisfactory to the certificate delivered pursuant Purchaser and its counsel;
(g) all other permits, consents, approvals, licenses, orders or authorizations of, and registrations, declarations and filings with, any Governmental Authority, if any that are required to Section 6(cbe obtained or made in connection with (i) shall be true the execution, delivery or performance of this Agreement and correct when made and on and as the other Transaction Documents by the Company or the consummation by the Company of any of the transactions contemplated hereby and thereby, and (ii) the conduct by the Company or the Purchaser of their respective businesses following the Closing Date as if made conducted on such the date and hereof shall have been duly obtained or made;
(h) the Company shall have performed and complied with all covenants and agreements and satisfied all the conditions contained in this Agreement herein required to be performed or satisfied complied with by it at the Company on or before the Closing (including the agreements set forth in Section 6.03 hereof) and shall, if so requested by the Purchaser, provide reasonable evidence of such Closing Date.compliance;
(ci) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in under this Agreement are shall be true and correct as if made on and in all material respects; the Purchaser shall have received from the Financial Officer a certificate, dated as of the Closing Date, with the same effect as if though made on and as of the Closing Date, stating that the representations and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock warranties of the Company have been duly and validly authorized and issued, under this Agreement are fully paid and non-assessable and conform to the description thereof contained true in the Prospectus.all material respects; and
(ivj) To the best knowledge of such counsel, the Company is not all corporate and other proceedings and actions taken in violation of or conflict connection with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (includingall certificates, without limitationopinions, the offeringagreements, issuance instruments and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with documents mentioned herein or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or incident to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not such transaction shall be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Purchaser and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectusits counsel.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ribozyme Pharmaceuticals Inc)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase and pay for the Shares are Series 2020 Bonds will be subject to the accuracy of the representations and warranties on the part of the Issuer herein, to the performance by the Issuer and the Purchaser of their respective obligations hereunder and to the following additional conditions precedent:
(A) The Ordinance, the Indenture, the Base Lease and the Lease shall have been duly authorized and executed by the respective parties thereto in the form hereto before approved by the Purchaser and shall be in full force and effect and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Purchaser.
(B) At the Closing Time, the Purchaser shall receive in form and substance satisfactory to it:
(i) the opinion of Bond Counsel approving the issuance and delivery of the Series 2020 Bonds;
(ii) the opinion of counsel for each of the following terms entities constituting the Company (acting as counsel to the Company, as the tenant under the Lease and conditionsto the Purchaser, as purchaser under this Agreement), that the Lease and this Agreement constitute valid and legal binding obligations of the Company and the Purchaser, as applicable;
(iii) a certificate or certificates, satisfactory in form and substance to Bond Counsel and the Company, of an authorized official of the Issuer dated the date of closing to the effect that, to the best of such official’s knowledge and belief:
(a) On each of the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained Issuer set forth in this Agreement Section 1 hereof is true, accurate and complete in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and all material respects as of the Closing Date as if made on such date Time, and each of the Company shall have performed all covenants and agreements and satisfied all of the conditions contained Issuer set forth in this Agreement required to be performed or satisfied by it complied with at or before prior to the Closing Time has been complied with as of such Closing Date.time; and
(cb) The Purchaser shall have received on no litigation is pending, or to such official’s knowledge threatened, to restrain or enjoin the Closing Date a certificateissuance, addressed to it and dated the Closing Dateexecution, sale or delivery of the chief executive Series 2020 Bonds or chief operating officer and contesting the chief financial officer issuance or chief accounting officer the validity of the CompanySeries 2020 Bonds, to the effect that Ordinance, the signers of such certificate have carefully examined Indenture, the Base Lease, the Lease, or this Agreement and that none of the proceedings or authority for the issuance of the Series 2020 Bonds has been repealed, revoked or rescinded;
(iv) certified conformed copies or manually executed counterparts of the Ordinance, the Indenture, the Base Lease and the Lease;
(v) A certificate or certificates, satisfactory in form and substance to Bond Counsel and the Purchaser, of an authorized representative of the Company dated the date of closing to the effect that:
(a) each of the representations and warranties of the Company set forth in Section 2 hereof is true, accurate and complete in all material respects as of the Closing Time, and each of the agreements of the Company set forth in this Agreement to be complied with at or prior to the Closing Time has been complied with as of such time; and
(b) insofar as the signers of such certificate or certificates are aware, after reasonable investigation, since the date of this Agreement, there has been no material adverse change in the property or financial position of the Company or results of operation of the Company; and
(c) no litigation is pending, or to the knowledge of the Company threatened, to restrain or enjoin the issuance, execution, sale or delivery of the Series 2020 Bonds or in any way contesting or affecting any authority for issuance or the validity of the Series 2020 Bonds, the Base Lease, the Lease or this Agreement or the creation, existence, or powers of the Company to lease the Project; and
(vi) such additional certificates, opinions, or documents as the Purchaser may reasonably request to evidence the due satisfaction at or prior to such time of all conditions then to be satisfied in connection with the transactions contemplated hereby. If the conditions to the obligations of the Purchaser contained in this Agreement are true and correct as not satisfied or if made on and as the obligations of the Closing DatePurchaser shall be terminated for any reason permitted by this Agreement, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect terminate and neither the Company Purchaser nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there Issuer shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectusany further obligations hereunder.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of the Purchaser’s Obligations. The obligations obligation of the Purchaser under this Agreement to purchase and pay for the Shares are Securities is subject to each of the following terms and conditionsconditions unless waived in writing by the Purchaser:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made in all material respects (other than representations and warranties with a Material Adverse Effect qualifier, which shall be true and correct as written) on and as of the Closing Date as if made on such date and Date; the Company shall have performed complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such prior to the Closing Date.
(b) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company’s knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Securities or any Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement, the other Transaction Documents or the Disclosure Documents.
(c) The Purchaser shall have received on certificates, dated the Closing Date a certificate, addressed to it and dated signed by the Closing Date, of the chief executive or chief operating officer Chief Executive Officer and the chief financial officer or chief accounting officer Chief Financial Officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement paragraphs 5(a) and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date(b).
(d) No order preventing or suspending the use of the Prospectus The Purchaser shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the received an opinion of G▇▇▇▇▇, D▇▇▇ & C▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, LLP with respect to the operation authorization of the New York AgencySeries G Stock, the Representative Offices Conversion Shares, the Warrants and the Subsidiaries); Warrant Shares and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth other customary matters in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken form attached hereto as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.Exhibit C.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of the each Purchaser under this Agreement to purchase and pay for the Shares are Securities is subject to each of the following terms and conditionsconditions unless waived in writing by the Purchaser:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made in all material respects (other than representations and warranties with a Material Adverse Effect qualifier, which shall be true and correct as written) on and as of the Closing Date as if made on such date and Date; the Company shall have performed complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such prior to the Closing Date.
(b) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company’s knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Securities or any Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement, the other Transaction Documents or the Disclosure Documents.
(c) The Purchaser Purchasers shall have received on certificates, dated the Closing Date a certificate, addressed to it and dated signed by the Closing Date, of the chief executive or chief operating officer Chief Executive Officer and the chief financial officer or chief accounting officer Chief Financial Officer of the Company, to the effect that the signers of such certificate paragraphs 5(a) and (b) have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Datebeen duly satisfied.
(d) No order preventing or suspending the use of the Prospectus The Purchasers shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the received an opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇& ▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, LLP with respect to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property authorization of the Company or either Subsidiary is or may be subject that is material to Series B Stock, the Company Conversion Shares, the Warrants and the Subsidiaries, taken as a whole, or which is required to be disclosed Warrant Shares and other customary matters in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except form attached hereto as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.Exhibit C.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to the accuracy, in all material respects, when made and on the Closing Date, of the representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following terms and additional conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of made by the Company contained in this Agreement Section 2 hereof shall have been true and in the certificate delivered pursuant to Section 6(c) correct when made, and shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(cb) The Purchaser shall have received on Except for any notices required or permitted to be filed after the Closing Date a certificatewith certain federal and state securities commissions, addressed to it the Company shall have obtained all governmental approvals required in connection with the lawful sale and dated issuance of the Notes.
(c) At the Closing Date, of the chief executive or chief operating officer sale and the chief financial officer or chief accounting officer of issuance by the Company, to and the effect that purchase by the signers of such certificate have carefully examined this Agreement and that the representations and warranties Purchaser, of the Company contained in this Agreement are true Notes shall be legally permitted by all laws and correct as if made on and as of regulations to which the Closing Date, with the same effect as if made on the Closing Date, and Purchaser or the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Dateare subject.
(d) No order preventing or suspending All corporate and other proceedings in connection with the use of transactions contemplated at the Prospectus shall have been or Closing Date and all documents and instruments incident to such transactions shall be reasonably satisfactory in effect substance and no order suspending form to the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied withPurchaser.
(e) On No default or Event of Default shall have occurred under any of the Transaction Documents.
(f) The Company shall have delivered to the Purchaser each of the following:
(i) Certificate of Good Standing or comparable certificate as to the Company, certified as of a recent date prior to the Closing Date there shall have been furnished by the Secretary of State of each such company's state of incorporation;
(ii) An opinion of counsel to the Purchaser Company, in form and substance reasonably satisfactory to the opinion Purchaser;
(iii) A certificate of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Secretary of the Company, dated the Closing Date Date, certifying that (1) attached thereto are true and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws correct copies of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence organizational documents of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of that such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations organizational documents are in full force and effect and neither have not been amended, supplemented, revoked or repealed since the Company nor either Subsidiary has received any notice date of proceedings relating to any revocation or modification thereof.
such certification; (iii2) The Company’s capitalization attached thereto is as set forth in a true and correct copy of resolutions duly adopted by the Prospectus, and all Board of the issued shares of capital stock Directors of the Company have been duly and validly authorized and issuedauthorizing the execution, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default existsdelivery, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby thereby; and (including, without limitation, 3) there are no proceedings for the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with dissolution or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets liquidation of the Company pursuant that have commenced or, to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any knowledge of the property or assets Company, been threatened;
(iv) A certificate of the Secretary of the Company, dated the Closing Date, certifying the incumbency, signatures and authority of the officers of the Company is subject, nor will such actions violate authorized to execute and deliver this Agreement and the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect Notes on the business, financial condition or results of operations behalf of the Company and perform the SubsidiariesCompany's obligations thereunder on behalf of the Company;
(v) A certificate of an officer of the Company, taken dated the Closing Date, certifying that (A) the representations and warranties of the Company set forth in this Agreement were true and correct as of the date hereof and are true and correct as of the Closing Date; (B) that the Company has performed and complied with all agreements, obligations and covenants to be performed or complied by the Company under this Agreement; (C) since the respective dates as of which information is given in the Private Placement Memorandum, other than as set forth in the Private Placement Memorandum (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement), (1) there has not occurred any change or any development that might have a wholeMaterial Adverse Effect, (2) there has not been any change in the common stock, equity interests, the short-term debt or the long-term debt of the Company that might have a Material Adverse Effect, (3) the Company has not incurred any material liability or obligation, direct or contingent, (4) a Material Loss has not occurred and (5) the Company has not declared or paid any dividend on its common stock, except for dividends declared in the ordinary course of business and consistent with past practice; and (D) he has reviewed the Private Placement Memorandum and, in his opinion (A) the Private Placement Memorandum, as of its date and the Closing Date, did not and does not include any untrue statement of a material fact and did not and does not omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the date of the Private Placement Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Private Placement Memorandum; and
(vi) a letter from the Accountants, in form and substance reasonably satisfactory to the Purchaser and dated not more than five days prior to the Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the date thereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Private Placement Memorandum, as of a date not more than five days prior to the date thereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to underwriters in connection with registered public offerings.
(viiig) No consentEach of the Transaction Documents, approvalother than this Agreement, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within shall be in form and substance reasonably satisfactory to the Republic of Panama is required in connection with the execution Purchaser and delivery shall have been duly executed and delivered by the Company of this Agreement and the consummation of other parties thereto, and the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has Notes shall have been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(xh) The certificates for sale of the Shares to Notes shall not be sold enjoined (temporarily or permanently) on the Closing Date.
(i) The Company shall not have sustained since the date of the latest audited financial statements incorporated by reference in the Private Placement Memorandum (A) any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as described or contemplated in the Private Placement Memorandum, or (B) since such date there shall not have been any change in the capital stock, short-term debt or long-term debt of the Company or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, prospects, stockholders' equity or results of operations of the Company, otherwise than as described or contemplated in the Private Placement Memorandum, the effect of which, in any such case described in clause (A) or (B), is, in the judgment of the Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the delivery of the Securities being delivered to the Purchaser on the Closing Date are on the terms and in due the manner contemplated in the Private Placement Memorandum and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gainsthis Agreement. In addition, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser such further information, certificates and documents as the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory Purchaser may reasonably request to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection evidence compliance with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by conditions set forth in this AgreementSection.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of the each Purchaser under this Agreement to purchase and pay for the Shares are Securities is subject to each of the following terms and conditionsconditions unless waived in writing by the Purchaser:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made in all material respects (other than representations and warranties with a Material Adverse Effect qualifier, which shall be true and correct as written) on and as of the Closing Date as if made on such date and Execution Date; the Company shall have performed complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such Closing prior to the Execution Date.
(b) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company's knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Securities or any Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement, the other Transaction Documents or the Disclosure Documents.
(c) The Purchaser Purchasers shall have received on the Closing Date a certificatecertificates, addressed to it and dated the Closing Date, of Execution Date and signed by the chief executive or chief operating officer Chief Executive Officer and the chief financial officer or chief accounting officer Chief Financial Officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement paragraphs 5(a) and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date(b).
(d) No order preventing or suspending the use of the Prospectus The Purchasers shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the received an opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian LLP legal counsel for to the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly , the Warrants and validly executed the Warrant Shares and delivered by other customary matters in the Company.form attached hereto as Exhibit C.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iiie) The Company is not an “investment company” shall have obtained, on or a company “controlled” by an “investment company” as defined before forty (40) days after the Execution Date, shareholder approval required pursuant to NASDAQ Small Cap Market rules for the transaction contemplated in the Investment Company ActTransaction Documents.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Subscription Agreement (M Wave Inc)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement Purchasers to purchase and pay for the Shares are Purchasers' Debt Securities shall be subject in their discretion to each the accuracy of and compliance in all material respects with the representations and the warranties of the Company herein contained as of the date hereof and the Closing Date, to the performance by the Company of its obligations hereunder and to the following terms and additional conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no have been issued under the Act or proceedings for such purpose shall be pending before therefor initiated or threatened by the Commission, and any requests by Commission prior to the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied withClosing Date.
(eb) On You shall have received an opinion, dated the Closing Date there shall have been furnished Date, of Anderson, Byrd, Richeson, Flaherty & Henrichs, Kansas counsel for the ▇▇▇pa▇▇, to the Purchaser the opinion of ▇▇▇ ▇▇▇ec▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized incorporated and is validly existing as a limited liability company corporation in good standing under the laws of the Republic State of Panama Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus;
(ii) The Purchasers' Debt Securities have been duly authorized, executed, authenticated, issued and delivered by the Company and constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or by general principles of equity;
(iii) The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or by general principles of equity;
(iv) The Indenture and the Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Debt Securities have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale and delivery of the Purchased Debt Securities or the execution, delivery and performance by the Company of the Securities Resolution, the Purchased Debt Securities, any Delayed Delivery Contracts or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of Spencer, Scott & Dwyer, P.C., Missouri counsel for the Company, to the ▇▇▇▇▇▇ ▇hat:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; and the Company is duly qualified to do business and is as a foreign corporation in good standing in the Republic States of Panama andArkansas, to Missouri and Oklahoma, which are the best knowledge of such counsel, but without inquiry, only jurisdictions (other than Kansas) in each other jurisdiction which it owns or leases substantial properties or in which the character or location of its assets or properties (owned, leased or licensed) or the nature conduct of its business makes requires such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.qualification;
(ii) The Company has holds all the valid and subsisting franchises which are necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under to authorize it to carry on the laws of the Republic of Panama utility businesses in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and which it is engaged as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.Prospectus;
(iii) The Company’s capitalization is as set forth in the Prospectus, This Agreement and all of the issued shares of capital stock of the Company any Delayed Delivery Contracts have been duly authorized, executed and validly authorized and issued, are fully paid and non-assessable and conform to delivered by the description thereof contained in the Prospectus.Company;
(iv) To Neither the best knowledge of such counselissuance, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents sale and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation delivery of the Republic of Panama where Purchased Debt Securities nor the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares this Agreement, any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in breach of Common Stock in any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Rights Offering) will not Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Serv- ice Commission of the State of Missouri, the Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky law of any jurisdiction), conflict with or result in the a breach of any term of the terms, conditions or provision ofprovisions of the Restated Articles of Incorporation, as amended, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) underBy-Laws, or require any consent or waiver underas amended, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, or of any material agreement, indenture, agreement or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property properties or assets of the Company is subject, nor will such actions violate Company; and
(v) Relying as to materiality to a large extent upon the charter or by-laws or other governing document statements and opinions of representatives of the Company Company, such counsel have no reason to believe that either the Registration Statement or any applicable law, rule or administrative regulation of or in the Republic of PanamaProspectus, or any decree known amendment or supplement thereto, as of their respective effective or issue dates, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein not misleading; the descriptions in the Registration Statement and Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any court legal or governmental agency or governmental authority of or proceedings required to be described in the Republic Prospectus by Item 103 of Panama having jurisdiction over Regulation S-K under the Company Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K which are not described and filed as so required; it being understood that such counsel need express no opinion as to the financial statements or other financial or statistical information contained in the Registration Statement or the Subsidiaries or any of their propertiesProspectus. In rendering such opinion, except for such conflictsSpencer, breachesScott & Dwyer, defaults and other events P.C. may rely, as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion incorporation of ▇▇▇ ▇▇▇▇▇▇▇ ▇nd ▇▇▇ ▇atters governed by Kansas law, upon the opinion of Anderson, Byrd, Richeson, Flaherty & Henrichs referred to in para▇▇▇▇▇ (▇) ▇▇▇▇e ▇▇▇, ▇▇ to ▇▇▇ ▇▇▇ter▇ ▇▇▇▇▇▇d thereby, upon the opinion of Brydon, Swearengen & England, Professional Corporation referred t▇ ▇▇ ▇ar▇▇▇▇▇▇ (▇) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, Swearengen & England, Professional Corporation, special regulatory ▇▇▇▇▇▇▇ for the Company, to the effect that no approval, authorization, consent or other order of any public board or body in the States of Missouri, Oklahoma or Arkansas is legally required for the issuance, sale and delivery of the Purchased Debt Securities or the execution, delivery and performance by the Company of the Securities Resolution, the Purchased Debt Securities, this Agreement or any Delayed Delivery Contract (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of Cahill Gordon & Reindel, counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i▇) To the best knowledge of such counsel there is no action▇▇▇ Purchasers' Debt Securities have been duly authorized, suitexecuted, investigation or proceedingauthenticated, governmental or otherwise, pending, threatened or contemplated to which issued and delivered by the Company or either Subsidiary is or may be a party or of which and constitute, and the business or property Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company or either Subsidiary is or entitled to the benefits and security provided by the Indenture except as the same may be subject that is material limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the Company and the Subsidiaries, taken as a whole, enforcement of creditors' rights or which is required to be disclosed in the Registration Statement and the Prospectus.by general principles of equity;
(ii) The execution Indenture has been duly authorized, executed and delivery delivered by the Company of this Agreement Company, has been duly qualified under the Trust Indenture Act and the consummation constitutes a valid and legally binding instrument of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock enforceable in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and accordance with its terms except as required the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the Securities Act, the Exchange Act and applicable state securities enforcement of creditors' rights or Blue Sky laws, no consent, approval, authorization or order by general principles of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.equity;
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” Indenture and the Purchased Debt Securities conform as defined to legal matters in all material respects to the descriptions thereof contained in the Investment Company Act.Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement was declared has become effective under the Securities Act on the Effective Date Act, and, to the best of the knowledge of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending before the Commission or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein and the Form T-1 of the Trustee, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act and the applicable Rules and Regulations; and
(vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company. In rendering such opinion Cahill Gordon & Reindel may rely, as to the incorporation of the ▇▇▇▇▇▇▇ ▇▇▇ ▇s t▇ ▇▇▇ ▇ther matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of Anderson, Byrd, Richeson, Flaherty & Henrichs; Brydon, Swearengen & ▇▇▇▇▇nd, ▇▇ofessio▇▇▇ C▇▇▇▇▇▇▇▇on; ▇▇▇ ▇▇▇nc▇▇, ▇▇ot▇ & ▇▇▇▇▇, P.C. referred to above. In addition, ▇▇▇▇ ▇▇▇▇▇▇▇ sh▇▇▇ ▇tate that such counsel has participated in conferences with officers and other representatives of the Company, counsel for the Company, representatives of the independent accountants of the Company and representatives of the Purchasers at which the contents of the Registration Statement and Prospectus, and any subsequent amendments or supplements thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorprated by reference in the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto, on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts have come to the attention of such counsel which lead such counsel to believe that either the Registration Statement or the Prospectus, and any subsequent amendments or supplements thereto, as of their respective effective or issue dates, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need make no comment with respect to the financial statements and other financial and statistical information included in or incorporated by reference in the Registration Statement or Prospectus or any such amendments or supplements or the Form T-1 of the Trustee).
(f) You shall have received an opinion, dated the Closing Date, of Thompson Coburn LLP, counsel for the Purchasers, to the effect that:
(i) The Purchasers' Debt Securities have been duly authorized, executed, authenticated, issued and delivered by the Company and constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits and security provided by the Indenture except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or by general principles of equity;
(ii) The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights or by general principles of equity;
(iii) The Indenture and the Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under the Act., and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act, and the Registration Statement and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial or statistical information included therein and the Form T-1 of the Trustee, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act and the applicable Rules and Regulations; and
(vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company. In rendering such opinion Thompson Coburn LLP may rely, as to the incorporation of the Comp▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇ll other matters governed by the laws of the States of Kansas, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of Anderson, Byrd, Richeson, Flaherty & Henrichs; Brydon, Swearengen & ▇▇▇▇▇nd, ▇▇of▇▇▇▇▇▇▇▇ C▇▇▇▇▇▇▇▇on; ▇▇▇ ▇▇▇nc▇▇, ▇▇ott & D▇▇▇▇, P.C. referred to above. Thompson Coburn L▇▇ ▇▇▇▇ ▇▇▇ ▇▇pre▇▇ ▇▇y opinion with respect to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ forth in paragraphs (i), (ii) and (iv) of the opinion of Spencer, Scott & Dwyer, P.C. referred to above. In addition, ▇▇▇▇ ▇▇▇▇▇▇▇ sh▇▇▇ ▇tate that such counsel has participated in conferences
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of the Purchaser to purchase the Standby Shares is subject to the accuracy, on the date of this Agreement and on the Delivery Date, of the representations of the Company in this Agreement, to performance by the Company of its obligations under this Agreement to purchase the Shares are subject and to each of the following terms and additional conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 millionThe Registration Statement must have become effective.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall may be in effect and no proceedings for such purpose shall may be pending before or threatened by the Commission, and any requests by the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall must have been complied withwith to the reasonable satisfaction of the Purchaser.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iiic) The Company’s capitalization is as set forth in the Prospectus, Executone and all certain affiliates of the issued shares Purchaser shall have entered into a Share Exchange Agreement, dated as of capital stock of even date herewith (the Company have been duly "Share Exchange Agreement"), all representations and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations warranties of the Company and Executone contained in the SubsidiariesShare Exchange Agreement shall be true and correct in all material respects as of the date hereof and Executone and Unistar shall have performed all obligations and complied with all agreements, taken undertakings, covenants and conditions required under the Share Exchange Agreement as a wholeof the date hereof.
(vd) To The Company and Executone shall have entered into the best knowledge Reorganization Agreement, as of such counsel, no default existseven date herewith (the "Reorganization Agreement"), and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and Executone shall have performed all obligations and complied with all agreements, undertakings, covenants and conditions required under the consummation Reorganization Agreement as of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a wholedate hereof.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement Purchasers to purchase and pay for the Shares are Purchased Debt Securities shall be subject in their discretion to each the accuracy of and compliance in all material respects with the representations and the warranties of the Company herein contained as of the date hereof and the Closing Date, to the performance by the Company of its obligations hereunder and to the following terms and additional conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no have been issued under the Act or proceedings for such purpose shall be pending before therefor initiated or threatened by the Commission, and any requests by Commission prior to the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied withClosing Date.
(eb) On You shall have received an opinion, dated the Closing Date there shall have been furnished to the Purchaser the opinion Date, of ▇▇▇▇▇, A▇▇▇▇▇▇▇ & ▇▇▇▇B▇▇▇, Panamanian LLP, Kansas counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized incorporated and is validly existing as a limited liability company corporation in good standing under the laws of the Republic State of Panama Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ii) The Purchased Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iii) The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Indenture and the Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Debt Securities have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale and delivery of the Purchased Debt Securities or the execution, delivery and performance by the Company of the Securities Resolution, the Purchased Debt Securities, any Delayed Delivery Contracts or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities or “blue sky” laws of said state);
(vi) Neither the issuance, sale and delivery of the Purchased Debt Securities nor the execution, delivery and performance by the Company of this Agreement, any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities or “blue sky” laws of said state); and
(vii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of Spencer, Scott, & D▇▇▇▇, P.C., Missouri counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business and is as a foreign corporation in good standing in the Republic States of Panama andArkansas, to Missouri and Oklahoma, which are the best knowledge of such counsel, but without inquiry, only jurisdictions (other than Kansas) in each other jurisdiction which it owns or leases substantial properties or in which the character or location of its assets or properties (owned, leased or licensed) or the nature conduct of its business makes requires such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.qualification;
(ii) The Company has holds all the valid and subsisting franchises which are necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under to authorize it to carry on the laws of the Republic of Panama utility businesses in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and which it is engaged as described in the Prospectus (including, without limitation, with respect to the operation of the New York AgencyRegistration Statement, the Representative Offices General Use Disclosure Package and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.Prospectus;
(iii) The Company’s capitalization is as set forth in the Prospectus, This Agreement and all of the issued shares of capital stock of the Company any Delayed Delivery Contracts have been duly authorized, executed and validly authorized and issued, are fully paid and non-assessable and conform to delivered by the description thereof contained in the Prospectus.Company;
(iv) To Neither the best knowledge of such counselissuance, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents sale and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation delivery of the Republic of Panama where Purchased Debt Securities nor the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares this Agreement, any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in breach of Common Stock in any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Rights Offering) will not Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or “blue sky” laws of any jurisdiction), conflict with or result in the a breach of any term of the terms, conditions or provision ofprovisions of the Restated Articles of Incorporation, as amended, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) underBy-Laws, or require any consent or waiver underas amended, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, or of any material agreement, indenture, agreement or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property properties or assets of the Company is subjectCompany;
(v) Such counsel has no reason to believe that (a) either the Registration Statement, as of the Effective Time, or the Prospectus, as of its issue date and also as of the Closing Date, or (b) the General Use Disclosure Package, as of the Applicable Time, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor will of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such actions violate counsel need express no opinion as to the charter or by-laws financial statements or other governing document of financial information contained in the General Use Disclosure Package or the Prospectus; and
(vi) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any applicable lawof its officers is a party or of which any of its properties is subject, rule or administrative regulation of at law or in the Republic of Panamaequity, or before or by any decree known federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to such counsel of any court result in a Material Adverse Effect or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the prevent consummation of the transactions contemplated hereby and thereby hereby. In rendering such opinion, S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. may rely, as to all matters governed by Kansas law covered therein, upon the opinion of A▇▇▇▇▇▇▇ & B▇▇▇, LLP referred to in paragraph (including without limitation b) above and, as to all matters covered thereby, upon the offeringopinion of Brydon, issuance and sale by the Company of shares of Common Stock S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in the Rights Offering)paragraph (d) below.
(ixd) All necessary corporate action has You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the Company, to the effect that all approvals of the Public Service Commission of the State of Missouri, the Corporation Commission of Oklahoma and the Arkansas Public Service Commission which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Debt Securities have been duly satisfied; such approvals are in full force and validly taken by effect; and no further approval, authorization, consent or other order of any public board or body in the Company to authorize States of Missouri, Oklahoma or Arkansas is legally required for the issuance, sale and delivery of the Purchased Debt Securities or the execution, delivery and performance by the Company of the Securities Resolution, the Purchased Debt Securities, this Agreement and or any Delayed Delivery Contract (it being understood that such counsel need express no opinion as to any approvals which may be required under the issuance and sale securities or “blue sky” laws of the Shares. This Agreement has been duly and validly executed and delivered by the Companyany jurisdiction).
(xe) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on You shall have received an opinion, dated the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gainsDate, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇C▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, & R▇▇▇▇▇▇ ▇▇▇▇▇▇ llp, counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no actionThe Purchased Debt Securities have been duly authorized, suitexecuted, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which issued and delivered by the Company or either Subsidiary is or may be a party or of which and constitute, and the business or property Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company or either Subsidiary is or entitled to the benefits provided by the Indenture except as the same may be subject that is material limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the Company and the Subsidiaries, taken as a whole, enforcement of creditors’ rights or which is required to be disclosed in the Registration Statement and the Prospectus.by general principles of equity;
(ii) The execution Indenture has been duly authorized, executed and delivery delivered by the Company of this Agreement Company, has been duly qualified under the Trust Indenture Act and the consummation constitutes a valid and legally binding instrument of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock enforceable in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and accordance with its terms except as required the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the Securities Act, the Exchange Act and applicable state securities enforcement of creditors’ rights or Blue Sky laws, no consent, approval, authorization or order by general principles of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.equity;
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” Indenture and the Purchased Debt Securities conform as defined to legal matters in all material respects to the descriptions thereof contained in the Investment Company Act.Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas, the Public Service Commission of the State of Missouri, the Corporation Commission of Oklahoma and the Arkansas Public Service Commission which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities or “blue sky” laws of any jurisdiction);
(v) The Registration Statement was declared has become effective under the Securities Act on the Effective Date Act, and, to the best of the knowledge of such counsel’s knowledgecounsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending before the Commission or contemplated under the Securities Act; and
(vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company. In rendering such opinion C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ llp may rely, as to all matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of A▇▇▇▇▇▇▇ & B▇▇▇, LLP; B▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have participated in conferences with officers and other representatives of the Company, representatives of the independent registered public accounting firm for the Company, representatives of counsel for the Purchasers and representatives of the Purchasers at which the contents of the Registration Statement, the Prospectus and the General Use Disclosure Package and related matters were discussed. Although we have made certain inquiries and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in such documents. Subject to the foregoing, we advise you that (a) the Registration Statement and the Prospectus appear on their face to be appropriately responsive in all material respects to the requirements of the Act and the applicable Rules and Regulations and (b) no facts have come to our attention that lead us to believe that (i) the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the General Use Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that we express no comment in clauses (a) or (b) with respect to the financial statements or other financial data that is included in or omitted from the Registration Statement, the Prospectus or the General Use Disclosure Package or the Forms T-1).”
(f) You shall have received an opinion, dated the Closing Date, of D▇▇▇▇ & L▇▇▇▇▇▇ LLP, counsel for the Purchasers, with respect to such matters as the Purchasers may reasonably request and in form and substance satisfactory to the Purchasers.
(g) You shall have received from PricewaterhouseCoopers LLP letters dated, respectively, the date of this Agreement and the Closing Date and addressed to the Purchasers in form and substance reasonably acceptable to [ ].
(h) On the Closing Date, subsequent to the respective dates as of which information is given in the General Use Disclosure Package and the Prospectus, there shall have been no Material Adverse Change and there shall have been furnished to you a certificate, dated the Closing Date, from the Company, signed on behalf of the Company by the President, or the Vice President - Finance, stating in effect that to the best knowledge of the officer signing such certificate and except as may be reflected in or contemplated by the Registration Statement or stated in such certificate: (i) subsequent to the respective dates as of which information is given in the General Use Disclosure Package and the Prospectus, there has been no such Material Adverse Change; (ii) the representations and warranties of the Company contained in Section 3 of this Agreement are correct and the Company has complied with all the agreements and satisfied all the conditions to be performed or satisfie
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase and pay for the Shares are Bonds will be subject to each the accuracy of the representations and warranties on the part of the Issuer herein, to the performance by the Issuer and the Tenant of their respective obligations hereunder and to the following terms additional conditions precedent:
(A) The Ordinance, the Indenture and conditionsthe Lease shall have been duly authorized and executed by the respective parties thereto in the form hereto before approved by the Purchaser and shall be in full force and effect and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Purchaser.
(B) At the Closing Time, the Purchaser shall receive in form and substance satisfactory to it:
(1) the opinion of Bond Counsel approving the issuance and delivery of the Bonds.
(2) the opinion of Counsel for the Issuer.
(3) A certificate or certificates, satisfactory in form and substance to Bond Counsel and the Purchaser, of an authorized official of the Issuer dated the date of closing to the effect that, to the best of such official’s knowledge and belief:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares each of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained Issuer set forth in this Agreement are true Section 1 hereof is true, accurate and correct as if made on and complete in all material respects as of the Closing Date, with the same effect as if made on the Closing DateTime, and each of the Company has performed all covenants and agreements and satisfied all conditions contained of the Issuer set forth in this Agreement required to be performed or satisfied by it complied with at or prior to the Closing Time has been complied with as of such Closing Datetime; and
(b) no litigation is pending, or to his knowledge threatened, to restrain or enjoin the issuance, execution, sale or delivery of the Bonds or contesting the issuance or the validity of the Bonds, the Ordinance, the Indenture, the Lease, or this Agreement and that none of the proceedings or authority for the issuance of the Bonds has been repealed, revoked or rescinded.
(d4) No order preventing A certificate or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commissioncertificates, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for Bond Counsel and the Purchaser, of authorized member of the Tenant dated the date of closing to the effect that:
(ia) The Company each of the representations and warranties of the Tenant set forth in Section 2 hereof is true, accurate and complete in all material respects as of the Closing Time, and each of the agreements of the Tenant set forth in this Agreement to be complied with at or prior to the Closing Time has been duly organized and is validly existing complied with as a limited liability company of such time; and
(b) insofar as the signers of such certificate or certificates are aware, after reasonable investigation, since the date of this Agreement, there has been no material adverse change in good standing under the laws property or financial position of the Republic Tenant or results of Panama and operation of the Tenant; and
(c) no litigation is duly qualified pending, or to do business and is in good standing in the Republic knowledge of Panama andthe Tenant threatened, to restrain or enjoin the best knowledge issuance, execution, sale or delivery of such counsel, but without inquiry, the Bonds or in each other jurisdiction in which the character any way contesting or location of its assets or properties (owned, leased or licensed) affecting any authority for issuance or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination validity of the corporate existence Bonds, the Lease or this Agreement or the creation, existence, or powers of the CompanyTenant to lease the Project.
(ii5) The Company has all necessary corporate power and authority and owns, possesses Certified conformed copies or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws manually executed counterparts of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York AgencyOrdinance, the Representative Offices Indenture and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereofLease.
(iii6) The Company’s capitalization is Such additional certificates, opinions, or documents as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform Purchaser may reasonably request to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in evidence the due performance and observance satisfaction at or prior to such time of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares conditions then to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required satisfied in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering)hereby.
(ixC) All necessary corporate action has Subsequent to the Issuer’s acceptance of this Agreement:
(1) There shall not have occurred any change, or any development involving a prospective change in or affecting particularly the business or properties of the Tenant which, in the judgment of the Purchaser, materially impairs the investment quality of the Bonds; or
(2) Trading in securities generally on the New York Stock Exchange shall not have been duly and validly taken suspended, minimum prices shall not have been established on such Exchange, nor a banking moratorium declared either by Federal or Kansas authorities; or
(3) No order, decree or injunction of any court of competent jurisdiction, nor any order, ruling, regulation or administrative proceeding by any governmental body or board, shall have been issued or commenced nor shall any legislation have been enacted by the Company to authorize Congress, with the executionpurpose or effect of prohibiting the issuing, delivery and performance of this Agreement and the issuance and offering or sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.Bonds as contemplated hereby; or
(x4) The certificates for United States shall not be or become engaged in any major outbreak of armed hostilities which result in the Shares to be sold by declaration of national emergency. If the Company and delivered conditions to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf obligations of the Purchaser to contained in this Agreement are not satisfied or if the Republic obligations of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not shall be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel terminated for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated reason permitted by this Agreement, this Agreement shall terminate and neither the Purchaser nor the Issuer shall have any further obligations hereunder.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Bond Placement Agreement
Conditions of the Purchaser’s Obligations. The obligations obligation of the each Purchaser under this Agreement to purchase and pay for the Shares are Securities at each Closing Date is subject to each of the following terms and conditionsconditions unless waived by the Purchaser:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Date. The Company shall have performed complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such prior to the Closing Date.
(b) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company’s knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Securities or any Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement, the other Transaction Documents or the SEC Documents.
(c) The Purchaser Purchasers shall have received on certificates, dated the Closing Date a certificate, addressed to it and dated signed by the Closing Date, of the chief executive or chief operating officer Chief Executive Officer and the chief financial officer or chief accounting officer Chief Financial Officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement Sections 4(a) and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date4(b).
(d) No order preventing or suspending the use of the Prospectus The Purchasers shall have been or shall be in effect received an opinion of legal counsel to the Company, with respect to the Securities and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included other customary matters in the Registration Statement or the Prospectus or otherwise) shall have been complied with.form attached hereto as Exhibit D.
(e) The Major Investors (as defined in Section 8 hereof) shall be satisfied, in their sole discretion, with the results of their due diligence investigation with respect to the Company.
(f) The Company’s Board of Directors shall have approved the Series C Certificate of Designations, in substantially the form as set forth on Exhibit C hereto.
(g) The Company shall have received all necessary governmental and third party waivers, consents and approvals, other than the Stockholder Approval referred to in Section 3(e) hereof.
(h) The Company shall have complied with all applicable securities laws.
(i) On or prior to the Closing Date there date of the Initial Closing, the Company shall have authorized the filing of an amendment to the certificate of incorporation of the Company as necessary to give effect to the provisions set forth herein or in the Transaction Documents.
(j) The Security Agreement shall have been furnished duly executed by the Company and the parties thereto.
(k) As soon as reasonably practicable following the Initial Closing, the Company shall receive a fairness opinion with regard to valuation matters.
(l) As soon as reasonably practicable following the Initial Closing, the Rights Agreement shall be amended so as to satisfy the covenant set forth in Section 3(f) hereof.
(m) On or prior to the Purchaser date of the opinion of ▇▇▇▇▇Initial Closing, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated Company shall have filed (or authorized the Closing Date filing of) all UCC and similar financing statements in form and substance satisfactory to counsel for the Purchaser, Purchasers at the appropriate offices to the effect that:
(i) The Company has been duly organized create a valid and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing perfected security interest in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties Collateral (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority as defined in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights OfferingSecurity Agreement).
(ixn) All necessary corporate action has been duly and validly taken by On or prior to the Closing Date, the Company shall have furnished to authorize the executionMajor Investors such additional information, delivery certificates and performance documents as they may reasonably require for the purpose of this Agreement and enabling them to pass upon the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by Securities as contemplated herein, or to evidence the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf accuracy of any of the Purchaser to representations or warranties, or the Republic fulfillment of Panama any of the conditions, herein contained, or to any political subdivision or taxing authority thereof or therein otherwise in connection with the purchase by the Purchaser of the Sharestransaction contemplated hereby; and all dividends opinions and other distributions paid on certificates mentioned above or elsewhere in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not this Agreement shall be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and reasonably satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the ProspectusMajor Investors.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Convertible Note and Warrant Purchase Agreement (Eco2 Plastics Inc)
Conditions of the Purchaser’s Obligations. The obligations obligation of the each Purchaser under this Agreement to purchase and pay for the Shares are Securities is subject to each of the following terms and conditionsconditions unless waived in writing by the relevant Purchaser:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made in all material respects (other than representations and warranties with a Material Adverse Effect qualifier, which shall be true and correct as written) on and as of the Closing Date as if made on such date and Date; the Company shall have performed complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such prior to the Closing Date.
(b) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Basic Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company's knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Securities or any Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the other Basic Documents.
(c) The Purchaser Company shall have filed with the California Secretary of State the Series E Certificate of Determination in the form attached hereto as Exhibit B containing the resolutions of the Board of Directors of the Company creating the Series E Preferred Stock and setting forth the terms and conditions of the Series E Preferred Stock. A copy of each of the articles of incorporation of the Company and the Series E Certificate of Determination, certified by the State of California, shall have been delivered to the Purchasers as promptly as practicable after the Closing Date.
(d) The Purchasers and Placement Agent shall have received on certificates, dated the Closing Date a certificate, addressed to it and dated the Closing Date, of signed by the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement paragraphs 5(a) and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied withb).
(e) On or before the Closing Date there Date, the Purchasers shall have been furnished to received the Purchaser Registration Rights Agreement executed by the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date Company and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are agreement shall be in full force and effect at all times from and neither after the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the ProspectusClosing Date, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this AgreementEnforceability Exceptions.
(f) On the Closing Date there The Purchasers and Placement Agent shall have been furnished received an opinion of Gray Cary Ware & Freidenrich LLP, counsel to the Purchaser the opinion of Company, with respect ▇▇▇▇▇▇▇ t▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property ization of the Company or either Subsidiary is or may be subject that is material to shares of the Company Series E Preferred Stock, the Conversion Shares and the SubsidiariesWarrant Shares, taken as a whole, or which is required to be disclosed and other customary matters in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except form attached hereto as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.Exhibit C.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser Each Purchaser's obligation under this Agreement to purchase the Shares are Section 3 hereof is subject to the fulfillment on or before the Closing of each of the following terms and conditionsconditions unless waived by each of the Purchasers:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties each of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser Purchasers shall have received on the Closing Date a certificatereasonable opinion of Akerman, addressed Senterfitt & Eid▇▇▇, ▇.A., counsel to it and the Company, dated the Closing Date, of substantially in the chief executive or chief operating officer form and the chief financial officer or chief accounting officer of the Company, substantially to the effect that set forth in Exhibit C attached hereto;
(b) the signers Company shall have executed and delivered the Registration Rights Agreement, dated the Closing Date, substantially in the form of such certificate have carefully examined this Agreement and that Exhibit B attached hereto;
(c) the representations and warranties of the Company contained in this Agreement are Section 2 shall be true and correct on and as if of the Closing Date with the same effect as though made on and as of the Closing Date;
(d) the Company shall have performed all covenants, agreements and obligations contained in this Agreement, the Credit Agreement and the Term B Notes that are required to be performed or complied by it on or before the Closing Date;
(e) the Chief Executive Officer of the Company shall have delivered to the Purchasers at the Closing an Officer's Certificate certifying that the conditions specified in Sections 6.01(c), (d) and (h) have been fulfilled;
(f) all corporate and other proceedings taken or to be taken in connection with the same effect transactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to the Purchasers and the Purchasers' special counsel and the Purchasers and their special counsel shall have received all such counterpart originals or certified or other copies of such documents as if made they may reasonably request;
(g) the Purchasers, severally, shall have received the notes and warrants representing the Term B Notes and Term B Warrants in the amounts set forth opposite their names on Schedule 1; and
(h) on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect paid all reasonable out-of-pocket expenses (including the fees and no order suspending the effectiveness disbursements of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of Dew▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ P as special counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(iPurchasers) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery incurred by the Company of this Agreement Purchasers in connection with the review and the consummation negotiation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreementhereby.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Term B Convertible Note and Warrant Purchase Agreement (Viasource Communications Inc)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the representations and warranties of the Operating Partnership and the Company herein included, to the performance by the Operating Partnership and the Company of their respective obligations hereunder, and to the following terms and further conditions:
(a) On At the Closing DateTime, the Company maximum amount of Indebtedness plus the Investment shall receive subscription proceeds for shares be no greater than seventy-four and one half of Common Stock sold pursuant one percent (74.5%) of the appraised value of the Portfolio based upon a third party independent appraisal of the Portfolio in accordance with Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”) standards and acceptable to the Rights Offering and the Subscription Agreements equal to at least $100 millionPurchaser.
(b) The At the Closing Time, there shall be a minimum Debt Yield (as such term is defined in the Amendment) of ten percent (10%).
(c) At the Closing Time, (1) there shall not have been, since the date hereof, any change from that set forth in the SEC Filings that would reasonably be expected to result in a Material Adverse Effect, (2) no proceedings shall be pending or, to the knowledge of the Operating Partnership or the Company, threatened against the Operating Partnership, the Company or any Subsidiary before or by any Federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in any Material Adverse Effect, (3) the representations and warranties of the Company contained set forth in this Agreement and in the certificate delivered pursuant to Section 6(c) 1 hereof shall be true and correct when accurate as though expressly made and on at and as of such Closing Time; and (4) each of the Closing Date as if made on such date Operating Partnership and the Company shall have performed has complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it at or before prior to such Closing DateTime.
(cd) The At the Closing Time, the Purchaser shall have received on a certificate executed by the Closing Date a certificate, addressed to it and dated the Closing Date, of the president or chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to dated as of the effect that date hereof, on behalf of the signers Company and as general partner of such certificate have carefully examined this Agreement and the Operating Partnership, certifying that the representations and warranties of the Company contained in this Agreement Section 1 are true and correct accurate as if made on and as of at the Closing Date, with Time and that the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained precedent set forth in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall Section 7 have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied withsatisfied.
(e) On At the Closing Date there Time, the Purchaser shall have been furnished received a certificate executed by the secretary of the Company, dated as of the date hereof, on behalf of the Company and as general partner of the Operating Partnership, certifying as to the resolutions of the Board of Directors of the Company, on behalf of the Company and as general partner of the Operating Partnership, and other limited partnership and corporate proceedings relating to the authorization, execution and delivery of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby.
(f) At the Closing Time, the Purchaser shall have received the opinion favorable opinion, dated as of the date hereof, of Baker, Donelson, Bearman, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Panamanian P.C., counsel for the Operating Partnership and the Company, dated the Closing Date and in form and substance satisfactory to counsel for the PurchaserPurchaser and covering matters such as, to without limitation, good standing, due authorization, execution and delivery, enforceability and non-contravention of each of the effect thatTransaction Documents, the 1940 Act, REIT qualification and other customary matters.
(g) The following documents, each dated as of the Closing Date, shall have been duly executed and delivered at the Closing Time:
(i) The Company has been the Amendment and the Second Restated Partnership Agreement, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively, duly organized and is validly existing executed by the Company, in its capacity as a limited liability company in good standing under the laws general partner of the Republic Operating Partnership, and on behalf of Panama and is duly qualified to do business and is in good standing the existing limited partners in the Republic Operating Partnership (via power of Panama andattorney), to and the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.Purchaser;
(ii) The Company has all necessary corporate power the Escrow Agreement, substantially in the form attached hereto as Exhibit B, duly executed by the Operating Partnership, the Company, the Advisor, the Purchaser and authority and ownsthe Escrow Agent;
(iii) the Articles Supplementary, possesses or has obtained all governmental licensessubstantially in the form attached hereto as Exhibit C, permits, certificates, consents, orders, approvals and other authorizations required under duly executed by the laws Company;
(iv) each of the Republic of Panama Subordination Agreements, substantially in order to own or leasethe forms attached hereto as Exhibits D-1 and D-2, respectively, duly executed by the Operating Partnership, the Property Manager, the Company, the Advisor and the Purchaser, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.;
(v) To the best knowledge of such counselInvestor Rights Agreement, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, substantially in the due performance and observance of any termform attached hereto as Exhibit E, covenant or condition duly executed by the Company of any agreementCompany, indenturethe Operating Partnership, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in Advisor and the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.Purchaser;
(vi) The Shares a certificate registered in the name of the Purchaser representing the number of Preferred Units to be issued and sold purchased by the Company Purchaser pursuant to Section 4, substantially in the Purchaser hereunder have been form attached hereto as Exhibit F (the “Preferred Units Certificate”), duly and validly authorized andexecuted by the Company, when issued and delivered against payment therefor in its capacity as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder general partner of the Company.Operating Partnership; and
(vii) The execution, delivery and performance of this Agreement and ten certificates registered in the other Subscription Agreements by the Company and the consummation name of the transactions contemplated hereby and thereby Purchaser, each representing 10% of the number of Series A Preferred Shares issuable to the Purchaser following (including, without limitation, a) the offering, issuance and sale by the Company occurrence of shares of Common Stock an Optional Repurchase Event (as such term is defined in the Rights OfferingAmendment), (b) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of election from time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets to time of the Company Purchaser to exchange Preferred Units, in whole or in part, for Series A Preferred Shares pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property Amendment and (c) receipt by the Escrow Agent of instructions from the Purchaser to file the Articles Supplementary with the SDAT and to deliver one or assets more of such certificates to the Purchaser, pursuant to the terms of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Investor Rights Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offeringEscrow Agreement, issuance and sale by the Company of shares of Common Stock such certificates being substantially in the Rights Offeringform attached hereto as Exhibit G (collectively, the “Series A Preferred Shares Certificates”).
(ix) All necessary corporate action has been , in each case duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(xh) The certificates for At the Shares Closing Time, the Purchaser shall have received confirmation to be sold by its reasonable satisfaction that the Operating Partnership and the Company and have delivered to the Purchaser on Escrow Agent all documents required pursuant to the Closing Date Escrow Agreement, including the Articles Supplementary, the Preferred Units Certificate, the Series A Preferred Shares Certificates and the Company’s amended and restated bylaws, substantially in the form of Exhibit H hereto, which amended and restated bylaws are in due and proper form under Panamanian lawto become effective upon release from escrow, if applicable.
(xii) No stamp At or other issuance or transfer taxes or duties prior to the Closing Time, (i) GCC shall have assigned the Columbia Portfolio Purchase Agreement to the Operating Partnership and no capital gains, income, withholding or other taxes are payable certain Subsidiaries and (ii) the acquisition by or on behalf the Operating Partnership and such Subsidiaries of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxesColumbia Portfolio shall have been consummated.
(xiij) To The Company or the best knowledge of such counselOperating Partnership shall have sent to the Purchaser, there is no actionor the Purchaser shall have received, suiton or prior to the Closing Time, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property each of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished following documents, in form satisfactory to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇and its counsel, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect thattheir reasonable discretion:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property appraisals of the Company or either Subsidiary is or may be subject Portfolio prepared by an independent appraiser and in accordance with FIRREA standards (provided that is material the Purchaser will work in good faith to accept existing appraisals in the Company Operating Partnership’s and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.Company’s possession),
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offeringcapital expenditure budget(s), issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined engineering report(s) (provided that the Purchaser will work in good faith to accept existing engineering reports in the Investment Company Act.
(iv) The Registration Statement was declared effective under Operating Partnership’s and the Securities Act on the Effective Date and, to such counselCompany’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.possession),
Appears in 1 contract
Sources: Preferred Unit Purchase Agreement (Griffin Capital Essential Asset REIT, Inc.)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the representations and warranties of the Operating Partnership and the Company herein included, to the performance by the Operating Partnership and the Company of their respective obligations hereunder, and to the following terms and further conditions:
(a) On the At each Closing Date, (i) no proceedings shall be pending or, to the knowledge of the Operating Partnership or the Company, threatened against the Operating Partnership, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant or any Subsidiary before or by any federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in any Material Adverse Effect, (ii) the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained set forth in this Agreement and in the certificate delivered pursuant to Section 6(c) 1 hereof shall be true and correct when accurate as though expressly made and on at and as of such Closing Date; and (iii) each of the Closing Date as if made on such date Operating Partnership and the Company shall have performed has complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(db) No order preventing or suspending At each Closing Date, the use of the Prospectus Purchaser shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened received a certificate executed by the Commission, president or chief executive officer and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion chief financial officer of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counselClosing Date, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying that the representations and warranties contained in Section 1 are accurate as a wholeif made at the applicable Closing Date and that the conditions precedent set forth in this Section 7 have been satisfied.
(vc) To At each Closing Date, the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute Purchaser shall have received a default, in the due performance and observance of any term, covenant or condition certificate executed by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations secretary of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor dated as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The executiondate hereof, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying as a whole.
(viii) No consentto the resolutions of the Board of Directors of the Company, approvalon behalf of the Company and as general partner of the Operating Partnership, authorization or order of or filingand other limited partnership and corporate proceedings relating to the authorization, registrationexecution, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering)hereby.
(ixd) All necessary corporate action has At the initial Closing Date, the Purchaser shall have received (i) the Amendment and the Partnership Agreement, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively, duly executed by the Company, in its capacity as general partner of the Operating Partnership, and on behalf of the existing limited partners in the Operating Partnership (via power of attorney), and the Purchaser; and (ii) a certificate or book entry registered in the name of the Purchaser representing the number of Preferred Units to be purchased by the Purchaser pursuant to Section 3 (the "Preferred Units Certificate"), duly executed by the Company, in its capacity as general partner of the Operating Partnership.
(e) At the initial Closing Date, counsel for the Purchaser shall have been duly furnished with such documents as it may reasonably require in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein included; and validly all proceedings taken by the Operating Partnership or the Company to authorize the execution, delivery and performance of this Agreement and that are necessary in connection with the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to Preferred Units shall be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Purchaser and the Subsidiaries, taken its counsel. If any condition specified in this Section 7 shall not have been fulfilled when and as a whole, or which is required to be disclosed in fulfilled, this Agreement may be terminated by the Registration Statement Purchaser by notice to the Operating Partnership and the Prospectus.
(ii) The execution Company at any time at or prior to the final Closing Date, and delivery by such termination shall be without liability of any party to any other party, except that the Company provisions concerning payment of this Agreement expenses under Section 6 hereof, the provisions concerning indemnification under Section 8 hereof, and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock provisions relating to governing law shall remain in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreementeffect.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) On All corporate proceedings and other legal matters incident to the Closing Dateauthorization, form and validity of this Agreement and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Purchaser, and the Company shall receive subscription proceeds for shares of Common Stock sold pursuant have furnished to the Rights Offering such counsel all documents and the Subscription Agreements equal information that they may reasonably request to at least $100 millionenable them to pass upon such matters.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and ▇▇▇▇▇▇▇, outside Mauritius counsel for the Company shall have performed all covenants furnished to the Purchaser its written opinion, as counsel to the Company, addressed to the Purchaser and agreements and satisfied all dated the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date, in form and substance reasonably satisfactory to the Purchaser, substantially in the form attached hereto as Exhibit A-1.
(c) The Purchaser Company shall have received on furnished to the Closing Date Purchaser a certificate, addressed to it and dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer as to such matters as the chief executive or chief operating officer Purchaser may reasonably request, including, without limitation, a statement:
(i) That the representations, warranties and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties agreements of the Company contained in this Agreement Section 1 are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed complied with all covenants and its agreements contained herein and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or prior to such the Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.;
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, That no stop order suspending the effectiveness of the Registration Statement has been issued issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened;
(iii) That they have examined the Registration Statement and the Preliminary Prospectus, and, in their opinion, except for the omission of pricing information related to the IPO, (A) (1) the Registration Statement, as of the date hereof, and (2) the Preliminary Prospectus, as of the date hereof and on the Closing Date, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the date hereof, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement; and
(iv) To the effect of Section 8(d) (provided that no representation with respect to the judgment of the Purchaser need be made).
(i) Neither the Company nor any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included in the Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or (ii) since such date, and except as set out or contemplated in the Preliminary Prospectus, there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Company and its subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the judgment of the Purchaser, so material and adverse as to make it impracticable or inadvisable to proceed with the delivery of the Shares being delivered on the Closing Date on the terms and in the manner contemplated in this Agreement.
(e) The New York Stock Exchange shall have approved the Shares for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(f) The IPO shall have been consummated and Equity Shares with a combined value of at least $120 million but no greater than $200 million shall have been sold pursuant to this Agreement and in the IPO, exclusive of any Equity Shares sold pursuant to the underwriter’s over-allotment option.
(g) The Amended and Restated Constitution of Azure Power Global Limited filed as Exhibit 3.2 to the Registration Statement shall have become effective.
(h) The Company shall have delivered an executed counterpart of the Registration Rights Agreement in the form attached hereto as Exhibit A-2. 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 pending before in form and substance reasonably satisfactory to counsel for the Commission under the Securities ActPurchaser.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of the each Purchaser under this Agreement to purchase and pay for the Shares are Securities is subject to each of the following terms and conditionsconditions unless waived in writing by the Purchaser:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made in all material respects (other than representations and warranties with a Material Adverse Effect qualifier, which shall be true and correct as written) on and as of the Closing Date as if made on such date and Date; the Company shall have performed complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such prior to the Closing Date.
(b) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company's knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Securities or any Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement, the other Transaction Documents or the Disclosure Documents.
(c) The Purchaser Purchasers shall have received on certificates, dated the Closing Date a certificate, addressed to it and dated signed by the Closing Date, of the chief executive or chief operating officer Chief Executive Officer and the chief financial officer or chief accounting officer Chief Financial Officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement paragraphs 5(a) and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date(b).
(d) No order preventing or suspending the use of the Prospectus The Purchasers shall have been or shall be in effect and no order suspending the effectiveness received an opinion of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the CommissionBeckman, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished Lieberman & Barandes, LLP with respect to the Purchaser the opinion of ▇▇▇▇▇, ▇▇authoriz▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, es D ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for , the CompanyConversion Shares, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Warrants and the Subsidiaries, taken as a whole, or which is required to be disclosed Warrant Shares and other customary matters in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except form attached hereto as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.Exhibit C.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the representations and warranties of the Operating Partnership and the Company herein included, to the performance by the Operating Partnership and the Company of their respective obligations hereunder, and to the following terms and further conditions:
(a) On the At each Closing Date, (i) no proceedings shall be pending or, to the knowledge of the Operating Partnership or the Company, threatened against the Operating Partnership, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant or any Subsidiary before or by any Federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in any Material Adverse Effect, (ii) the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained set forth in this Agreement and in the certificate delivered pursuant to Section 6(c) 1 hereof shall be true and correct when accurate as though expressly made and on at and as of such Closing Date; and (iii) each of the Closing Date as if made on such date Operating Partnership and the Company shall have performed has complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(db) No order preventing or suspending At each Closing Date, the use of the Prospectus Purchaser shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened received a certificate executed by the Commission, president or chief executive officer and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion chief financial officer of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counselClosing Date, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying that the representations and warranties contained in Section 1 are accurate as a wholeif made at the applicable Closing Date and that the conditions precedent set forth in this Section 6 have been satisfied.
(vc) To At each Closing Date, the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute Purchaser shall have received a default, in the due performance and observance of any term, covenant or condition certificate executed by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations secretary of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor dated as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The executiondate hereof, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying as a whole.
(viii) No consentto the resolutions of the board of directors of the Company, approvalon behalf of the Company and as general partner of the Operating Partnership, authorization or order of or filingand other limited partnership and corporate proceedings relating to the authorization, registrationexecution, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering)hereby.
(ixd) All necessary corporate action has At the initial Closing Date, the Purchaser shall have received (i) the Amendment, substantially in the form attached hereto as Exhibit A-1, duly executed by the Company, in its capacity as general partner of the Operating Partnership, and the Purchaser; and (ii) a certificate or book entry registered in the name of the Purchaser representing the number of Preferred Units to be purchased by the Purchaser pursuant to Section 3 (the “Preferred Units Certificate”), duly executed by the Company, in its capacity as general partner of the Operating Partnership.
(e) At the initial Closing Date, counsel for the Purchaser shall have been duly furnished with such documents as it may reasonably require in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein included; and validly all proceedings taken by the Operating Partnership or the Company to authorize the execution, delivery and performance of this Agreement and that are necessary in connection with the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to Preferred Units shall be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Purchaser and the Subsidiaries, taken its counsel. If any condition specified in this Section 6 shall not have been fulfilled when and as a whole, or which is required to be disclosed in fulfilled, this Agreement may be terminated by the Registration Statement Purchaser by notice to the Operating Partnership and the Prospectus.
(ii) The execution Company at any time at or prior to the final Closing Date, and delivery by such termination shall be without liability of any party to any other party, except that the Company provisions concerning payment of this Agreement expenses under Section 5 hereof, the provisions concerning indemnification under Section 7 hereof, and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock provisions relating to governing law shall remain in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreementeffect.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Series a Cumulative Redeemable Preferred Unit Purchase Agreement (Strategic Storage Trust VI, Inc.)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement Purchasers to purchase and pay for the Shares are Purchased Debt Securities shall be subject in their discretion to each the accuracy of and compliance in all material respects with the representations and the warranties of the Company herein contained as of the date hereof and the Closing Date, to the performance by the Company of its obligations hereunder and to the following terms and additional conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no have been issued under the Act or proceedings for such purpose shall be pending before therefor initiated or threatened by the Commission, and any requests by Commission prior to the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied withClosing Date.
(eb) On You shall have received an opinion, dated the Closing Date there shall have been furnished to the Purchaser the opinion Date, of ▇▇▇▇▇, A▇▇▇▇▇▇▇ & ▇▇▇▇B▇▇▇, Panamanian LLP, Kansas counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized incorporated and is validly existing as a limited liability company corporation in good standing under the laws of the Republic State of Panama Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ii) The Purchased Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute, and the Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iii) The Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Indenture and the Purchased Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Debt Securities have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale and delivery of the Purchased Debt Securities or the execution, delivery and performance by the Company of the Securities Resolution, the Purchased Debt Securities, any Delayed Delivery Contracts or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state);
(vi) Neither the issuance, sale and delivery of the Purchased Debt Securities nor the execution, delivery and performance by the Company of this Agreement, any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(vii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of Spencer, Scott, & D▇▇▇▇, P.C., Missouri counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business and is as a foreign corporation in good standing in the Republic States of Panama andArkansas, to Missouri and Oklahoma, which are the best knowledge of such counsel, but without inquiry, only jurisdictions (other than Kansas) in each other jurisdiction which it owns or leases substantial properties or in which the character or location of its assets or properties (owned, leased or licensed) or the nature conduct of its business makes requires such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.qualification;
(ii) The Company has holds all the valid and subsisting franchises which are necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under to authorize it to carry on the laws of the Republic of Panama utility businesses in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and which it is engaged as described in the Prospectus (including, without limitation, with respect to the operation of the New York AgencyRegistration Statement, the Representative Offices General Use Disclosure Package and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.Prospectus;
(iii) The Company’s capitalization is as set forth in the Prospectus, This Agreement and all of the issued shares of capital stock of the Company any Delayed Delivery Contracts have been duly authorized, executed and validly authorized and issued, are fully paid and non-assessable and conform to delivered by the description thereof contained in the Prospectus.Company;
(iv) To Neither the best knowledge of such counselissuance, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents sale and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation delivery of the Republic of Panama where Purchased Debt Securities nor the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares this Agreement, any Delayed Delivery Contract, the Securities Resolution or the Purchased Debt Securities will conflict with, violate or result in breach of Common Stock in any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Rights Offering) will not Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Corporation Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws of any jurisdiction), conflict with or result in the a breach of any term of the terms, conditions or provision ofprovisions of the Restated Articles of Incorporation, as amended, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) underBy-Laws, or require any consent or waiver underas amended, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, or of any material agreement, indenture, agreement or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property properties or assets of the Company is subjectCompany;
(v) Such counsel has no reason to believe that (a) either the Registration Statement, as of the Effective Time, or the Prospectus, as of its issue date and also as of the Closing Date, or (b) the General Use Disclosure Package, as of the Applicable Time, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor will of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such actions violate counsel need express no opinion as to the charter or by-laws financial statements or other governing document of financial information contained in the General Use Disclosure Package or the Prospectus; and
(vi) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any applicable lawof its officers is a party or of which any of its properties is subject, rule or administrative regulation of at law or in the Republic of Panamaequity, or before or by any decree known federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to such counsel of any court result in a Material Adverse Effect or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the prevent consummation of the transactions contemplated hereby and thereby (including without limitation hereby. In rendering such opinion, S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. may rely, as to the offering, issuance and sale by incorporation of the Company and all matters governed by Kansas law, upon the opinion of shares A▇▇▇▇▇▇▇ & B▇▇▇, LLP referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Common Stock Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in the Rights Offering)paragraph (d) below.
(ixd) All necessary corporate action has been duly You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the Company, to the effect that no approval, authorization, consent or other order of any public board or body in the States of Missouri, Oklahoma or Arkansas is legally required for the issuance, sale and validly taken by delivery of the Company to authorize Purchased Debt Securities or the execution, delivery and performance by the Company of the Securities Resolution, the Purchased Debt Securities, this Agreement and or any Delayed Delivery Contract (it being understood that such counsel need express no opinion as to any approvals which may be required under the issuance and sale securities acts or Blue Sky laws of the Shares. This Agreement has been duly and validly executed and delivered by the Companyany jurisdiction).
(xe) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on You shall have received an opinion, dated the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gainsDate, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇C▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, & R▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no actionThe Purchased Debt Securities have been duly authorized, suitexecuted, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which issued and delivered by the Company or either Subsidiary is or may be a party or of which and constitute, and the business or property Contract Debt Securities have been duly authorized and when executed and authenticated in accordance with the Indenture and delivered to and paid for by the purchasers pursuant to Delayed Delivery Contracts will constitute, valid and legally binding obligations of the Company or either Subsidiary is or entitled to the benefits provided by the Indenture except as the same may be subject that is material limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the Company and the Subsidiaries, taken as a whole, enforcement of creditors’ rights or which is required to be disclosed in the Registration Statement and the Prospectus.by general principles of equity;
(ii) The execution Indenture has been duly authorized, executed and delivery delivered by the Company of this Agreement Company, has been duly qualified under the Trust Indenture Act and the consummation constitutes a valid and legally binding instrument of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock enforceable in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and accordance with its terms except as required the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the Securities Act, the Exchange Act and applicable state securities enforcement of creditors’ rights or Blue Sky laws, no consent, approval, authorization or order by general principles of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.equity;
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” Indenture and the Purchased Debt Securities conform as defined to legal matters in all material respects to the descriptions thereof contained in the Investment Company Act.Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Debt Securities have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement was declared has become effective under the Securities Act on the Effective Date Act, and, to the best of the knowledge of such counsel’s knowledgecounsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending before the Commission or contemplated under the Securities Act, and the Registration Statement, the General Use Disclosure Package and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial information included therein or omitted therefrom and the Forms T-1 of the Trustee, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations; and
(vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company. In rendering such opinion C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of A▇▇▇▇▇▇▇ & B▇▇▇, LLP; B▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have participated in conferences with officers and other representatives of the Company, representatives of the independent registered public accounting firm for the Company, representatives of counsel for the Purchasers and representatives of the Purchasers at which the contents of the Registration Statement, the Prospectus and the General Use Disclosure Package and related matters were discussed. Although we have made certain inquiries and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in such documents. Subject to the foregoing, we advise you that no facts have come to our attention that lead us to believe that (i) the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the General Use Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that we express no comment with respect to the financial statements or other financial data that is included in or omitted from the Registration Statement, the Prospectus or the General Use Disclosure Package or the Forms T-1).”
(f) You shall have received an opinion, dated the Closing Date, of D▇▇▇▇ & L▇▇▇▇▇▇ LLP, counsel for the Purchasers, with respect to such matters as the Purchasers may reasonably request and in form and substance satisfactory to the Purchasers.
(g) You shall have received from PricewaterhouseCoopers LLP letters dated, respectively, the date of this Agreement and the Closing Date and addressed to the Purchasers in form and substance reasonably acceptable to [ ].
(h) On the Closing Date, subsequent to the respective dates as of which information is given in the General Use Disclosure Package and the Prospectus, there shall have been no Material Adverse Change and there shall have been furnished to you a certificate, dated the Closing Date, from the Company, signed on behalf of the Company by the President, or the Vice President - Finance, stating in effect that to the best knowledge of the officer signing such certificate and except as may be reflected in or contemplated by the Registration Statement or stated in such certificate: (i) subsequent to the respective dates as of which information is given in the General Use Disclosure Package and the Prospectus, there has been no such Material Adverse Change; (ii) the representations and warranties of the Company contained in Section 3 of this Agreement are correct and the Company has complied with all the agreements and satisfied all the conditions to be performed or satisfied on its part at or prior to the Closing Date; and (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings
Appears in 1 contract
Sources: Purchase Agreement (Empire District Electric Trust Ii)
Conditions of the Purchaser’s Obligations. The obligations obligation of the each Purchaser under this Agreement to purchase and pay for the Shares are Securities is subject to each of the following terms and conditionsconditions unless waived in writing by each Purchaser:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made in all material respects (other than representations and warranties with a Material Adverse Effect qualifier, which shall be true and correct as written) on and as of the Closing Date as if made on such date and Date; the Company shall have performed complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such prior to the Closing Date.
(b) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company’s knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Securities or any Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement, the other Transaction Documents or the Disclosure Documents.
(c) The Purchaser Purchasers shall have received on certificates, dated the Closing Date a certificate, addressed to it and dated signed by the Closing Date, of the chief executive or chief operating officer Chief Executive Officer and the chief financial officer or chief accounting officer Chief Financial Officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement paragraphs 5(a) and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date(b).
(d) No order preventing or suspending the use of the Prospectus The Purchasers shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the received an opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Panamanian counsel for to the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation authorization of the New York AgencyShares, the Representative Offices Warrants and the Subsidiaries); Warrant Shares and to other customary matters in the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.form attached hereto as Exhibit C.
(iiie) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could Purchasers shall have a material adverse effect right of first refusal on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, any financing in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party the issuer of debt or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on equity securities between the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf the date of effectiveness of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this AgreementRegistration Statement.
(f) On the Closing Date there The Company shall have been furnished received the consent of the holders of the Company’s Convertible Senior Secured Fixed Rate Notes, as amended, to defer payments due on the Purchaser Notes and other matters in substantially the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇form attached hereto as Exhibit D.
(g) The Company shall have delivered to Mercator Advisory Group, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel LLC the share certificates for the shares of the Company’s Series E Convertible Preferred Stock issued to MMF, dated the Closing Date MMF III and in form and substance satisfactory to counsel for the Purchaser, to the effect that:Focus Fund LP.
(ih) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the The Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in respective holders of the Registration Statement and the Prospectus.
(ii) The execution and delivery by Series F Stock shall have entered into an agreement that the Company of this Agreement will not issue and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of sell additional shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this AgreementSeries F Stock.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase and pay for the Shares are Series 2023 Bonds will be subject to the accuracy of the representations and warranties on the part of the Issuer herein, to the performance by the Issuer and the Company of their respective obligations hereunder and to the following additional conditions precedent:
(A) The Ordinance, the Indenture, the Base Lease and the Lease shall have been duly authorized and executed by the respective parties thereto in the form hereto before approved by the Purchaser and shall be in full force and effect and shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Purchaser.
(B) At the Closing Time, the Purchaser shall receive in form and substance satisfactory to it:
(i) the opinion of Bond Counsel approving the issuance and delivery of the Series 2023 Bonds;
(ii) the opinion of counsel for each of Bluhawk Holdings, Bluhawk Land, Bluhawk Market Place and Bluhawk Sports Properties;
(iii) a certificate or certificates, satisfactory in form and substance to Bond Counsel and the following terms Purchaser, of an authorized official of the Issuer dated the date of closing to the effect that, to the best of such official’s knowledge and conditionsbelief:
(a) On each of the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained Issuer set forth in this Agreement Section 1 hereof is true, accurate and complete in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and all material respects as of the Closing Date as if made on such date Time, and each of the Company shall have performed all covenants and agreements and satisfied all of the conditions contained Issuer set forth in this Agreement required to be performed or satisfied by it complied with at or before prior to the Closing Time has been complied with as of such Closing Date.time; and
(cb) The Purchaser shall have received on no litigation is pending, or to such official’s knowledge threatened, to restrain or enjoin the Closing Date a certificateissuance, addressed to it and dated the Closing Dateexecution, sale or delivery of the chief executive Series 2023 Bonds or chief operating officer and contesting the chief financial officer issuance or chief accounting officer the validity of the CompanySeries 2023 Bonds, to the effect that Ordinance, the signers of such certificate have carefully examined Indenture, the Base Lease, the Lease, or this Agreement and that none of the proceedings or authority for the issuance of the Series 2023 Bonds has been repealed, revoked or rescinded;
(iv) a certificate or certificates, satisfactory in form and substance to Bond Counsel and the Purchaser, of authorized officer, member or manager of the Company dated the date of closing to the effect that:
(a) each of the representations and warranties of the Company set forth in Section 2 hereof is true, accurate and complete in all material respects as of the Closing Time, and each of the agreements of the Company set forth in this Agreement to be complied with at or prior to the Closing Time has been complied with as of such time; and
(b) insofar as the signers of such certificate or certificates are aware, after reasonable investigation, since the date of this Agreement, there has been no material adverse change in the property or financial position of the Company or results of operation of the Company; and
(c) no litigation is pending, or to the knowledge of the Company threatened, to restrain or enjoin the issuance, execution, sale or delivery of the Series 2023 Bonds or in any way contesting or affecting any authority for issuance or the validity of the Series 2023 Bonds, the Lease or this Agreement or the creation, existence, or powers of the Company to lease the Project.
(v) certified conformed copies or manually executed counterparts of the Ordinance, the Indenture, the Base Lease and the Lease; and
(vi) such additional certificates, opinions, or documents as the Purchaser may reasonably request to evidence the due satisfaction at or prior to such time of all conditions then to be satisfied in connection with the transactions contemplated hereby.
(C) Subsequent to the Issuer’s acceptance of this Agreement:
(i) there shall not have occurred any change, or any development involving a prospective change in or affecting particularly the business or properties of the Company which, in the judgment of the Purchaser, materially impairs the investment quality of the Series 2023 Bonds; or
(ii) trading in securities generally on the New York Stock Exchange shall not have been suspended, minimum prices shall not have been established on such Exchange, nor a banking moratorium declared either by Federal or Kansas authorities; or
(iii) no order, decree or injunction of any court of competent jurisdiction, nor any order, ruling, regulation or administrative proceeding by any governmental body or board, shall have been issued or commenced nor shall any legislation have been enacted by the Congress, with the purpose or effect of prohibiting the issuing, offering or sale of the Series 2023 Bonds as contemplated hereby; or
(iv) the United States shall not be or become engaged in any major outbreak of armed hostilities which result in the declaration of national emergency. If the conditions to the obligations of the Purchaser contained in this Agreement are true and correct as not satisfied or if made on and as the obligations of the Closing DatePurchaser shall be terminated for any reason permitted by this Agreement, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect terminate and neither the Company Purchaser nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there Issuer shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectusany further obligations hereunder.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of the Purchaser’s Obligations. The obligations obligation of the each Purchaser under this Agreement to purchase and pay for the Shares are Securities is subject to each of the following terms and conditionsconditions unless waived in writing by the Purchaser:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made in all material respects (other than representations and warranties with a Material Adverse Effect qualifier, which shall be true and correct as written) on and as of the Closing Date as if made on such date and Date; the Company shall have performed complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such prior to the Closing Date.
(b) None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company's knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Securities or any Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement, the other Transaction Documents or the Disclosure Documents.
(c) The Purchaser Purchasers shall have received on certificates, dated the Closing Date a certificate, addressed to it and dated signed by the Closing Date, of the chief executive or chief operating officer Chief Executive Officer and the chief financial officer or chief accounting officer Chief Financial Officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement paragraphs 5(a) and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date(b).
(d) No order preventing or suspending the use of the Prospectus The Purchasers shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the received an opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇Whitney LLP, Panamanian counsel for to the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly , the Warrant and validly executed and delivered by the Company.
(x) The certificates for the Warrant Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed customary matters in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except form attached hereto as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.Exhibit C.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each of the following terms and conditions:
(a) On Subsequent to the Closing Datedate of this Agreement, there shall not have occurred any material adverse change, or any development involving a prospective change, in or affecting the business, properties, results of operations or financial condition of the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to or the Rights Offering and Subsidiaries, taken as a whole, that is not described in or contemplated by the Subscription Agreements equal to at least $100 millionProspectus.
(b) The You shall have received on the Closing Date, an opinion of Skadden, Arps, Slate, Meag▇▇▇ & ▇lom ▇▇▇ and Piper & Marbury L.L.P., dated the Closing Date, addressed to you, to the effect set forth in Exhibit A and Exhibit B, respectively, hereto.
(c) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission at or prior to the Closing Date and all the representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made on and as of the date hereof and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus you shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Companyreceived a certificate, dated the Closing Date and in form and substance satisfactory signed by the Chairman, President or Chief Financial Officer of the Company (or such other officer as is acceptable to counsel for the Purchaseryou), to the effect that:set forth in this Section 6(c) and in Section 6(d) hereof.
(id) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, shall not have failed at or prior to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character Closing Date to have performed or location complied with any of its assets agreements herein contained and required to be performed or properties (owned, leased complied with by it hereunder at or licensed) or prior to the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the CompanyClosing Date.
(iie) The Company has all necessary corporate power and authority and ownsShares shall have been listed, possesses or has obtained all governmental licensessubject to notice of issuance, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of on the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereofStock Exchange.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Purchase Agreement (Apartment Investment & Management Co)
Conditions of the Purchaser’s Obligations. The obligations of each Purchaser to consummate the Purchaser under this Agreement to purchase the Shares Closing are subject to each the satisfaction or waiver by such Purchaser on or before the Closing Date of the following terms and conditions:
(ai) On No Material Adverse Effect shall have occurred since the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.date hereof;
(bii) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on in all material respects as of the date hereof and as of the Closing Date as if made on such date with the same force and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing DateDate (other than those qualified by materiality, Material Adverse Effect or similar qualifications, which shall be true in all respects), except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of such date);
(iii) All covenants and agreements contained in this Agreement to be performed by the Company shall have been performed and complied with in all material respects;
(iv) Such Purchaser shall have received a certificate, signed by an executive officer of the same effect Company, certifying as if made on to the matters set forth in Section 8(a)(i), (ii) and (iii);
(v) As of the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use none of the Prospectus following events shall have occurred and be continuing: (a) trading in the Common Stock shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests suspended by the Commission for additional information (to be included in the Registration Statement or the Prospectus NASDAQ Capital Market; or otherwise(b) a banking moratorium shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character declared either by U.S. federal or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York AgencyState authorities (collectively, the Representative Offices and the Subsidiariesa “Market Adverse Effect”); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.;
(vi) The Shares to be issued and sold by Company shall have complied with the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder requirements of the Company.Nasdaq Stock Market, Inc., for the listing of the Shares on The Nasdaq Global Select Market; and
(vii) The execution, delivery and performance Each of this Agreement and the other Subscription Agreements by Purchasers shall have timely received from the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a wholePurchase Notice.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required The Registration Rights Agreement shall be in connection with the execution full force and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).effect; and
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale Each of the Shares. This Agreement has been duly Purchasers shall have received on and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on as of the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf written evidence reasonably satisfactory to it of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property good standing of the Company is in the state of Nevada, in writing or may be subject that is material to any standard form of telecommunication from the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge appropriate governmental authorities of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the Prospectusjurisdiction.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Purchase Agreement (Puissance Cross-Border Opportunities II LLC)
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement to purchase the Shares hereunder are subject to each the accuracy of the representations and warranties of the Operating Partnership and the Company herein included, to the performance by the Operating Partnership and the Company of their respective obligations hereunder, and to the following terms and further conditions:
(a) On the At each Closing Date, (1) no proceedings shall be pending or, to the knowledge of the Operating Partnership or the Company, threatened against the Operating Partnership, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant or any Subsidiary before or by any Federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding would reasonably be expected to result in any Material Adverse Effect, (2) the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained set forth in this Agreement and in the certificate delivered pursuant to Section 6(c) 1 hereof shall be true and correct when accurate as though expressly made and on at and as of such Closing Date; and (3) each of the Closing Date as if made on such date Operating Partnership and the Company shall have performed has complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(db) No order preventing or suspending At each Closing Date, the use of the Prospectus Purchaser shall have been or shall be in effect and no order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened received a certificate executed by the Commission, president or chief executive officer and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished to the Purchaser the opinion chief financial officer of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counselClosing Date, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying that the representations and warranties contained in Section 1 are accurate as a wholeif made at the applicable Closing Date and that the conditions precedent set forth in this Section 6 have been satisfied.
(vc) To At each Closing Date, the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute Purchaser shall have received a default, in the due performance and observance of any term, covenant or condition certificate executed by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations secretary of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor dated as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The executiondate hereof, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations behalf of the Company and as general partner of the SubsidiariesOperating Partnership, taken certifying as a whole.
(viii) No consentto the resolutions of the Board of Directors of the Company, approvalon behalf of the Company and as general partner of the Operating Partnership, authorization or order of or filingand other limited partnership and corporate proceedings relating to the authorization, registrationexecution, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering)hereby.
(ixi) All necessary corporate action has At the initial Closing Date, the Purchaser shall have received (i) the Amendment and the Partnership Agreement, substantially in the forms attached hereto as Exhibits A-1 and A-2, respectively, duly executed by the Company, in its capacity as general partner of the Operating Partnership, and on behalf of the existing limited partners in the Operating Partnership (via power of attorney), and the Purchaser; and (ii) a certificate or book entry registered in the name of the Purchaser representing the number of Preferred Units to be purchased by the Purchaser pursuant to Section 3 (the “Preferred Units Certificate”), duly executed by the Company, in its capacity as general partner of the Operating Partnership.
(d) At the initial Closing Date, counsel for the Purchaser shall have been duly furnished with such documents as it may reasonably require in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein included; and validly all proceedings taken by the Operating Partnership or the Company to authorize the execution, delivery and performance of this Agreement and that are necessary in connection with the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to Preferred Units shall be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Purchaser and the Subsidiaries, taken its counsel. If any condition specified in this Section 6 shall not have been fulfilled when and as a whole, or which is required to be disclosed in fulfilled, this Agreement may be terminated by the Registration Statement Purchaser by notice to the Operating Partnership and the Prospectus.
(ii) The execution Company at any time at or prior to the final Closing Date, and delivery by such termination shall be without liability of any party to any other party, except that the Company provisions concerning payment of this Agreement expenses under Section 5 hereof, the provisions concerning indemnification under Section 7 hereof, and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock provisions relating to governing law shall remain in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreementeffect.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Preferred Unit Purchase Agreement (Strategic Storage Growth Trust, Inc.)
Conditions of the Purchaser’s Obligations. The obligations obligation of the Purchaser under this Agreement to purchase and pay for the Shares are Securities as provided herein on the Closing Date shall be subject to each the satisfaction or waiver of the following terms and conditionsconditions on or prior to the Closing Date:
(a) On There shall have been no material breach by Holdings in the Closing Dateperformance of any of its covenants, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant agreements or obligations herein to be performed at or prior to the Rights Offering and the Subscription Agreements equal to at least $100 millionClosing.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) 2 hereof shall be true and correct when made and on and accurate in all material respects as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, Currently with the same effect as if made transactions contemplated hereby to occur on the Closing Date, the Transaction Agreements shall have become effective on terms and conditions substantially consistent with the documentation previously furnished to the Purchaser subject to such modifications as may be consented to by the Purchaser, which consent shall not be unreasonably withheld, and the Company has performed all covenants and agreements and satisfied all conditions contained Transactions contemplated in this Agreement required the Offering Memorandum to be performed or satisfied by it at consummated on or prior to such the Closing DateDate shall have been consummated.
(d) No order preventing or suspending On the use Closing Date the Purchaser shall have received the favorable opinion of J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel of the Prospectus shall have been or shall be in effect and no order suspending Company, dated as of such Closing Date, the effectiveness form of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.which is attached as Exhibit D.
(e) On the Closing Date there the Purchaser shall have been furnished to received the Purchaser the favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Panamanian special counsel for the CompanyHoldings, dated as of such Closing Date, the form of which is attached as Exhibit E.
(f) On the Closing Date and in form and substance satisfactory to counsel for the PurchaserPurchaser shall have received a written certificate executed by the Chief Executive Officer of Holdings, dated as of the Closing Date, to the effect that:
(i) The Company has been duly organized for the period from and is validly existing as a limited liability company in good standing under after the laws date of the Republic of Panama this Purchase Agreement and is duly qualified to do business and is in good standing in the Republic of Panama and, prior to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding Closing Date there has been instituted by not occurred any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.Material Adverse Change;
(ii) The Company has the representations, warranties and covenants of Holdings set forth in Section 2 of this Purchase Agreement are true and correct in all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under material respects with the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation of the New York Agency, the Representative Offices and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full same force and effect as though expressly made on and neither as of the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.Closing Date; and
(iii) The Company’s capitalization is as set forth Holdings has complied in all material respects with all the Prospectus, agreements and satisfied all of the issued shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform conditions on its part to be performed or satisfied hereunder at or prior to the description thereof contained in the ProspectusClosing Date.
(ivg) To On the best knowledge of such counselClosing Date, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither Purchaser shall have received the Company nor either Subsidiary is in violation of any franchiseWarrant Agreement, licenseduly authorized, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the CompanyHoldings, substantially in form set forth in Exhibits C hereto.
(xh) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there Holdings shall have been furnished to received proceeds from the Purchaser the opinion sale of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ counsel for the Company, dated the Closing Date and its common equity in form and substance satisfactory to counsel for the Purchaser, to the effect that:an amount not less than $210.0 million.
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company Holdings shall have paid all fees and the Subsidiaries, taken as a whole, or which is expenses required to be disclosed in the Registration Statement and the Prospectus.
(ii) The execution and delivery by the Company of this Agreement and the consummation paid as of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock Closing Date in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection accordance with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this AgreementSection 6 hereof.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of the Purchaser under this Agreement Purchasers to purchase and pay for the Shares are Purchased Preferred Securities shall be subject in their discretion to each the accuracy of and compliance in all material respects with the representations and the warranties of the Issuers herein contained as of the date hereof and the Closing Date, to the performance by the Issuers of their obligations hereunder and to the following terms and additional conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Company shall have performed all covenants and agreements and satisfied all the conditions contained in this Agreement required to be performed or satisfied by it at or before such Closing Date.
(c) The Purchaser shall have received on the Closing Date a certificate, addressed to it and dated the Closing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date.
(d) No order preventing or suspending the use of the Prospectus shall have been or shall be in effect and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no have been issued under the Act or proceedings for such purpose shall be pending before therefor initiated or threatened by the Commission, and any requests by Commission prior to the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied withClosing Date.
(eb) On You shall have received an opinion, dated the Closing Date there shall have been furnished to the Purchaser the opinion Date, of ▇▇▇▇▇, A▇▇▇▇▇▇▇ & ▇▇▇▇B▇▇▇, Panamanian LLP, Kansas counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the PurchaserIssuers, to the effect that:
(i) The Company has been duly organized incorporated and is validly existing as a limited liability company corporation in good standing under the laws of the Republic State of Panama Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(ii) The Corresponding Debt Securities have been duly authorized, executed, issued and delivered by the Company and constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Indenture and the Guarantee except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iii) Each of the Indenture, the Trust Agreement and the Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as to legal matters in all material respects to the descriptions thereof contained in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(v) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Preferred Securities, the Corre- sponding Debt Securities, the Common Securities and the Guarantee have been duly satisfied; such approvals are in full force and effect; and no further approval, authorization, consent or other order of any public board or body in the State of Kansas is legally required for the issuance, sale, delivery and performance of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities and the Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution or this Agreement (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state);
(vi) Neither the issuance, sale and delivery of the Corresponding Debt Securities or the Guarantee nor the execution, delivery and performance by the Company of this Agreement, the Trust Agreement or the Securities Resolution will conflict with, violate or result in a breach of any Kansas law or administrative regulation, or any court decree known to such counsel, applicable to the Company (it being understood that such counsel need express no opinion as to any approvals which may be required under the securities acts or Blue Sky laws of said state); and
(vii) This Agreement has been duly authorized, executed and delivered by the Company.
(c) You shall have received an opinion, dated the Closing Date, of S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C., Missouri counsel for the Issuers, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Kansas, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business and is as a foreign corporation in good standing in the Republic States of Panama andArkansas, to Missouri and Oklahoma, which are the best knowledge of such counsel, but without inquiry, only jurisdictions (other than Kansas) in each other jurisdiction which it owns or leases substantial properties or in which the character or location of its assets or properties (owned, leased or licensed) or the nature conduct of its business makes requires such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.qualification;
(ii) The Company has holds all the valid and subsisting franchises which are necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under to authorize it to carry on the laws of the Republic of Panama utility businesses in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and which it is engaged as described in the Prospectus (including, without limitation, with respect to the operation of the New York AgencyRegistration Statement, the Representative Offices General Use Disclosure Package and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.Prospectus;
(iii) The Company’s capitalization is as set forth in Neither the Prospectusissuance, sale and all delivery of the issued shares of capital stock of Corresponding Debt Securities or the Company have been duly and validly authorized and issued, are fully paid and non-assessable and conform to Guarantee nor the description thereof contained in the Prospectus.
(iv) To the best knowledge of such counsel, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares this Agreement, the Trust Agreement or the Securities Resolution will conflict with, violate or result in breach of Common Stock in any Missouri law or administrative regulation or any court decree known to such counsel applicable to the Rights Offering) will not Company (it being understood that such counsel need express no opinion as to matters subject to the jurisdiction of the Public Service Commission of the State of Missouri, the Cor- poration Commission of Oklahoma, the State Corporation Commission of the State of Kansas or the Arkansas Public Service Commission or as to the securities or Blue Sky laws of any jurisdiction), conflict with or result in the a breach of any term of the terms, conditions or provision ofprovisions of the Restated Articles of Incorporation, as amended, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) underBy-Laws, or require any consent or waiver underas amended, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, or of any material agreement, indenture, agreement or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which constitute a default thereunder, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property properties or assets of the Company is subjectCompany;
(iv) Such counsel has no reason to believe that (a) either the Registration Statement, as of the Effective Time, or the Prospectus, as of its issue date and also as of the Closing Date, or (b) the General Use Disclosure Package, as of the Applicable Time, contained any untrue statement of material fact or omitted to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; the descriptions in the Registration Statement, the General Use Disclosure Package and the Prospectus of contracts and other documents are accurate and fairly present the information therein shown; and such counsel do not know of any legal or governmental proceedings required to be described in the Prospectus by Item 103 of Regulation S-K under the Act which are not described as so required, nor will of any contracts or documents of a character required to be described in the Registration Statement or Prospectus pursuant to Item 11 of Form S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-K under the Act which are not described and filed as so required; it being understood that such actions violate counsel need express no opinion as to the charter or by-laws financial statements or other governing document of financial information contained in the General Use Disclosure Package or the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by the Company; and
(vi) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any applicable lawof its officers is a party or of which any of its properties is subject, rule or administrative regulation of at law or in the Republic of Panamaequity, or before or by any decree known federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to such counsel of any court result in a Material Adverse Effect or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the prevent consummation of the transactions contemplated hereby and thereby (including without limitation hereby. In rendering such opinion, S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. may rely, as to the offering, issuance and sale by incorporation of the Company and all matters governed by Kansas law, upon the opinion of shares A▇▇▇▇▇▇▇ & B▇▇▇, LLP referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Common Stock Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in the Rights Offering)paragraph (d) below.
(ixd) All necessary corporate action has been duly You shall have received an opinion, dated the Closing Date, of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, special regulatory counsel for the Issuers, to the effect that no approval, authorization, consent or other order of any public board or body in the State of Arkansas, Missouri or Oklahoma is legally required for the issuance, sale and validly taken by delivery of the Company to authorize Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities or the Guarantee or the execution, delivery and performance by the Issuers of the Securities Resolution, the Trust Agreement or this Agreement and (it being understood that such counsel need express no opinion as to any approvals which may be required under the issuance and sale securities acts or Blue Sky laws of the Shares. This Agreement has been duly and validly executed and delivered by the Companyany jurisdiction).
(xe) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on You shall have received an opinion, dated the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gainsDate, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇C▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, & R▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the PurchaserIssuers, to the effect that:
(i) To the best knowledge of such counsel there is no actionThe Corresponding Debt Securities have been duly authorized, suitexecuted, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which issued and delivered by the Company or either Subsidiary is or may be a party or of which the business or property and constitute valid and legally binding obligations of the Company or either Subsidiary is or entitled to the benefits provided by the Indenture except as the same may be subject that is material limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the Company and the Subsidiaries, taken as a whole, enforcement of creditors’ rights or which is required to be disclosed in the Registration Statement and the Prospectus.by general principles of equity;
(ii) The execution and delivery by Each of the Company of this Indenture, the Trust Agreement and the consummation Guarantee has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding instrument of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock enforceable in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and accordance with its terms except as required the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the Securities Act, the Exchange Act and applicable state securities enforcement of creditors’ rights or Blue Sky laws, no consent, approval, authorization or order by general principles of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.equity;
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” Indenture, the Trust Agreement, the Guarantee and the Corresponding Debt Securities conform as defined to legal matters in all material respects to the descriptions thereof contained in the Investment Company Act.Registration Statement, the General Use Disclosure Package and the Prospectus;
(iv) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee have been obtained, and such counsel knows of no approval of any other governmental regulatory body which is legally required in connection therewith (other than any approvals required under the securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement was declared has become effective under the Securities Act on the Effective Date Act, and, to the best of the knowledge of such counsel’s knowledgecounsel (after inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending before the Commission or contemplated under the Act, and the Registration Statement, the General Use Disclosure Package and the Prospectus, and each amendment or supplement thereto (except, in each case, as to the financial statements or other financial information included therein or omitted therefrom and the Forms T-1 of the Trustees, as to which such counsel need not express an opinion), as of their respective effective or issue dates, appeared to comply as to form in all material respects with the requirements of Form S-3, the Trust Indenture Act (including the rules and regulations) and the applicable Rules and Regulations;
(vi) This Agreement has been duly authorized, executed and delivered by the Company; and
(vii) The statements made in the General Use Disclosure Package and the Prospectus under the caption, “[United States Taxation],” to the extent they constitute matters of law or legal conclusions, have been reviewed by such counsel and are accurate and correct in all material respects and fairly present the information set forth therein. In rendering such opinion C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, may rely, as to the incorporation of the Company and as to all other matters governed by the laws of the States of Kansas, Missouri, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of A▇▇▇▇▇▇▇ & B▇▇▇, LLP; B▇▇▇▇▇, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that: “We have participated in conferences with officers and other representatives of the Issuers, representatives of the independent registered public accounting firm for the Issuers, representatives of counsel for the Purchasers and representatives of the Purchasers at which the contents of the Registration Statement, the Prospectus and the General Use Disclosure Package and related matters were discussed. Although we have made certain inquiries and investigations in connection with the preparation of the Registration Statement, the Prospectus and the General Use Disclosure Package, the limitations inherent in the role of outside counsel are such that we cannot and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in such documents. Subject to the foregoing, we advise you that no facts have come to our attention that lead us to believe that (i) the Registration Statement, at the Effective Time, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Prospectus, as of its date or as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) the General Use Disclosure Package, taken together, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that we express no comment with respect to the financial statements or other financial data that is included in or omitted from the Registration Statement, the Prospectus or the General Use Disclosure Package or the Forms T-1).”
(f) You shall have received an opinion, dated the Closing Date, of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware Counsel for the Issuers, to the effect that:
(i) The Trust is a duly formed and validly existing statutory trust in good standing under the Delaware Statutory Trust Act with the statutory trust power and authority to enter into and perform its obligations under this Agreement and the Trust Agreement, to issue the Purchased Preferred Securities Act.and the Common Securities and to own property and conduct its business as described in the Prospectus;
(ii) Under the Delaware Statutory Trust Act and the Trust Agreement, the execution and delivery by the Trust of this Agreement, and the performance by the Trust of its obligations hereunder, have been duly authorized by all necessary statutory trust action on the part of the Trust;
(iii) The Trust Agreement constitutes a valid and binding obligation of the Company and the EDE Trust Trustees, enforceable against the Company and the EDE Trust Trustees, in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization and other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity;
(iv) The Common Securities have been duly authorize
Appears in 1 contract
Sources: Purchase Agreement (Empire District Electric Trust Ii)
Conditions of the Purchaser’s Obligations. The obligations obligation of the each Purchaser under this Agreement to purchase and pay for the Shares are Securities is subject to each of the following terms and conditionsconditions unless waived in writing by the Purchaser:
(a) On the Closing Date, the Company shall receive subscription proceeds for shares of Common Stock sold pursuant to the Rights Offering and the Subscription Agreements equal to at least $100 million.
(b) a. The representations and warranties of the Company contained in this Agreement and in the certificate delivered pursuant to Section 6(c) shall be true and correct when made and on and as of the Closing Date as if made on such date and the Date. The Company shall have performed complied in all covenants and material respects with all agreements and satisfied all the conditions contained in this Agreement required on its part to be performed or satisfied by it hereunder at or before such prior to the Closing Date.
b. None of the issuance and sale of the Securities pursuant to this Agreement or any of the transactions contemplated by any of the other Transaction Documents shall be enjoined (ctemporarily or permanently) and no restraining order or other injunctive order shall have been issued in respect thereof; and there shall not have been any legal action, order, decree or other administrative proceeding instituted or, to the Company’s knowledge, threatened against the Company or against any Purchaser relating to the issuance of the Securities or any Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement, the other Transaction Documents or the Disclosure Documents.
c. The Purchaser Purchasers shall have received on certificates, dated the Closing Date a certificate, addressed to it and dated signed by the Closing Date, of the chief executive or chief operating officer Chief Executive Officer and the chief financial officer or chief accounting officer Chief Financial Officer of the Company, to the effect that the signers of such certificate have carefully examined this Agreement Sections 5(a) and that the representations and warranties of the Company contained in this Agreement are true and correct as if made on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has performed all covenants and agreements and satisfied all conditions contained in this Agreement required to be performed or satisfied by it at or prior to such Closing Date(b).
(d) No order preventing or suspending the use of the Prospectus d. The Purchasers shall have been or shall be in effect and no order suspending the effectiveness received an opinion of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or threatened by the Commission, and any requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with.
(e) On the Closing Date there shall have been furnished legal counsel to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Panamanian counsel for the Company, dated the Closing Date and in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) The Company has been duly organized and is validly existing as a limited liability company in good standing under the laws of the Republic of Panama and is duly qualified to do business and is in good standing in the Republic of Panama and, to the best knowledge of such counsel, but without inquiry, in each other jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or the nature of its business makes such qualification necessary. To the best knowledge of such counsel, no proceeding has been instituted by any relevant regulatory authority in the Republic of Panama for the dissolution or termination of the corporate existence of the Company.
(ii) The Company has all necessary corporate power and authority and owns, possesses or has obtained all governmental licenses, permits, certificates, consents, orders, approvals and other authorizations required under the laws of the Republic of Panama in order to own or lease, as the case may be, and to operate its properties and to conduct its business as presently conducted and as described in the Prospectus (including, without limitation, with respect to the operation authorization of the New York Agency, the Representative Offices Shares and the Subsidiaries); and to the best knowledge of such counsel, all of such licenses, permits, certificates, consents, orders, approvals or authorizations are in full force and effect and neither the Company nor either Subsidiary has received any notice of proceedings relating to any revocation or modification thereof.
(iii) The Company’s capitalization is as set forth other customary matters in the Prospectus, and all form attached hereto as Exhibit C.
e. The Series A Certificate of the issued shares of capital stock of the Company Designation shall have been duly and validly authorized and issued, are fully paid and non-assessable and conform to filed with the description thereof contained Secretary of State of the State of Delaware.
f. As further described in the Prospectus.
(iv) To the best knowledge of such counselInvestor Rights Agreement, the Company is not in violation of or conflict with any term or provision of its charter or by-laws or other governing documents and neither the Company nor either Subsidiary is in violation of any franchise, license, permit, judgment, decree, order, statute, rule or regulation of the Republic of Panama where the consequences of such violation could have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has occurred which with notice or lapse of time or both would constitute a default, in the due performance and observance of any term, covenant or condition by the Company of any agreement, indenture, mortgage, deed of trust, note or any other agreement or instrument to which the Company is a party or by which it or its properties or businesses may be bound which default or event, individually or in the aggregate with all such other defaults or events, could have a material adverse effect on the business, financial condition or results of operations of the Company.
(vi) The Shares to be issued and sold by the Company to the Purchaser hereunder have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein will be duly and validly issued, fully paid and non-assessable and not subject to the pre-emptive rights of any shareholder of the Company.
(vii) The execution, delivery and performance of this Agreement and the other Subscription Agreements by the Company and the consummation of the transactions contemplated hereby and thereby (including, without limitation, the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not conflict with or result in the breach of any term or provision of, or constitute a default (or an event which with notice or lapse of time or both would constitute a default) under, or require any consent or waiver under, or result in the creation or imposition of any lien, charge, claim, encumbrance or security interest on any properties or assets of the Company pursuant to the terms of, any material agreement, indenture, or other instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions violate the charter or by-laws or other governing document of the Company or any applicable law, rule or administrative regulation of or in the Republic of Panama, or any decree known to such counsel of any court or governmental agency or governmental authority of or in the Republic of Panama having jurisdiction over the Company or the Subsidiaries or any of their properties, except for such conflicts, breaches, defaults and other events as would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole.
(viii) No consent, approval, authorization or order of or filing, registration, or qualification with any governmental agency or authority of or within the Republic of Panama is required in connection with the execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering).
(ix) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Shares. This Agreement has been duly and validly executed and delivered by the Company.
(x) The certificates for the Shares to be sold by the Company and delivered to the Purchaser on the Closing Date are in due and proper form under Panamanian law.
(xi) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Purchaser to the Republic of Panama or to any political subdivision or taxing authority thereof or therein in connection with the purchase by the Purchaser of the Shares; and all dividends and other distributions paid on or in respect of the Shares to all persons whether residents or non-residents of the Republic of Panama will not be subject to Panamanian income, withholding or other taxes.
(xii) To the best knowledge of such counsel, there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company is or may be a party or of which the business or property of the Company is or may be subject that is material to the Company.
(xiii) The courts of the Republic of Panama will observe and give effect to the choice of New York law as the governing law of this Agreement.
(f) On the Closing Date there shall have been furnished to the Purchaser the opinion of ▇▇▇▇D▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇T▇▇ ▇▇▇▇▇▇ counsel for and a representative of Trident Capital (the “Investor Designees”) shall be elected to the Board of Directors of the Company, dated with T▇▇ ▇▇▇▇▇▇ as Chairman of the Board of Directors. Three existing members of the Board of Directors shall have resigned from the Board of Directors, leaving four prior members and the Investor Designees on the Board of Directors. Each Investor Designee shall be entitled to serve on any committee of the Board of Directors, subject to compliance with applicable securities laws and the rules and regulations of the applicable exchange on which the Company’s common stock are then quoted or traded. Each Investor Designee shall execute a director indemnification agreement upon election to the Board of Directors.
g. The Company shall have received all necessary governmental and third party consents and approvals.
h. The Company shall have complied with all applicable securities laws.
i. The Company shall have amended its certificate of incorporation and bylaws as necessary to give effect to the provisions set forth herein or in the Transaction Documents.
j. The Company shall have executed and delivered to the Purchasers the Investor Rights Agreement.
k. The Company shall have furnished to the Purchaser a certificate from the transfer agent of the Securities, certifying as to the outstanding securities of the Company.
l. On or prior to the Closing Date Date, the Company shall have furnished to the Purchasers such additional information, certificates and documents as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained, or otherwise in connection with the transaction contemplated hereby; and all opinions and certificates mentioned above or elsewhere in this Agreement shall be reasonably satisfactory in form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) To the best knowledge of such counsel there is no action, suit, investigation or proceeding, governmental or otherwise, pending, threatened or contemplated to which the Company or either Subsidiary is or may be a party or of which the business or property of the Company or either Subsidiary is or may be subject that is material to the Company and the Subsidiaries, taken as a whole, or which is required to be disclosed in the Registration Statement and the ProspectusPurchasers.
(ii) The execution and delivery by the Company of this Agreement and the consummation of the transactions contemplated hereby and thereby (including without limitation the offering, issuance and sale by the Company of shares of Common Stock in the Rights Offering) will not violate or contravene any United States federal or New York law, rule or administrative regulation or any decree or order known to such counsel of any United States federal or New York court or governmental agency or body having jurisdiction over the Company or either Subsidiary or any of their respective properties, and except as required by the Securities Act, the Exchange Act and applicable state securities or Blue Sky laws, no consent, approval, authorization or order of any United States federal or New York court, governmental agency or body is required in connection with the issuance of the Shares by the Company and the consummation of the other transactions contemplated by this Agreement.
(iii) The Company is not an “investment company” or a company “controlled” by an “investment company” as defined in the Investment Company Act.
(iv) The Registration Statement was declared effective under the Securities Act on the Effective Date and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before the Commission under the Securities Act.
Appears in 1 contract
Sources: Securities Subscription Agreement (Eco2 Plastics Inc)