Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise). (b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser shall have received an opinion, dated such respective date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, to the effect that: (i) each of the Company and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts; (ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement; (iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material 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 to surrender for conversion Securities and under this Agreement to purchase the Shares are subject to each of the following terms and pay conditions:
(a) On the Closing Date, the Company shall receive subscription proceeds for any Shares 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 subjecttrue 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, in addressed to it and dated the Purchaser's sole discretionClosing Date, of the chief executive or chief operating officer and the chief financial officer or chief accounting officer of the Company, to the accuracy effect that the signers of such certificate have carefully examined this Agreement and that the representations and warranties of each of the Company contained in this Agreement are true and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, correct as if made on and as of the Expiration Closing Date, Redemption Date and with the same effect as if made on the Closing Date, respectively, to the accuracy of the statements of the officers of each of and the Company and BJI made pursuant to the provisions hereof, to the performance by each of the Company and BJI of its has performed all covenants and agreements hereunder and satisfied all conditions contained in this Agreement required to the following additional conditions:be performed or satisfied by it at or prior to such Closing Date.
(ad) The Registration Statement No order preventing or suspending the use of the Prospectus 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 shall be in effect and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 shall be in the Registration Statement or any post-effective amendment thereto or the Prospectus or any amendment or supplement thereto shall have been issued effect and no proceedings for that such purpose shall have been instituted be pending before 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 request of requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)) shall have been complied with.
(be) On each of the effective date of the Registration Statement and the Closing Date, Date there shall have been furnished to the Purchaser shall have received an opinion, dated such respective date, the opinion of ▇▇▇▇ and ▇▇, ▇▇▇▇▇▇▇ LLP& ▇▇▇▇▇▇▇, Panamanian counsel for the Company Company, dated the Closing Date and BJIin form and substance satisfactory to counsel for the Purchaser, to the effect that:
(i) each of the The Company and BJI has been duly incorporated organized and is validly existing as a 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 limited liability company in good standing under the laws of the Commonwealth Republic of Massachusetts;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) each 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 BJI the Subsidiaries, taken as a whole.
(v) To the best knowledge of such counsel, no default exists, and no event has corporate power 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 own which the Company is a party or lease 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 conduct its 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 described 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 each 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 BJI has corporate power to enter into the consummation of the other transactions contemplated by this Agreement and to carry out all the terms and provisions hereof and thereof to be carried out by it;Agreement.
(iii) each of the The Company and BJI has is not an authorized capitalization “investment company” or a company “controlled” by an “investment company” as set forth defined in the Prospectus; the Conversion Shares, including the Shares, have been duly authorized and reserved for issuance by all necessary corporate action of the Investment 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;Act.
(iv) the statements set forth The Registration Statement was declared effective under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" and "Description of Waban Capital Stock" in Securities Act on the ProspectusEffective Date and, insofar as to such statements purport to summarize certain provisions counsel’s knowledge, no stop order suspending the effectiveness of the capital stock of Registration Statement has been issued and no proceedings for that purpose are pending before the Company or BJI, are correct in all material respects; and the statements set forth Commission under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;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 to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, hereunder are subject to the accuracy of the representations and warranties of each of the Operating Partnership and the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 hereofincluded, to the performance by each of the Operating Partnership and the Company and BJI of its covenants and agreements hereunder their respective obligations hereunder, and to the following additional further conditions:
(a) The Registration Statement shall have been declared effective not later than 5:00 P.M.At each Closing Date, New York City time, on the date hereof or such later time as the Purchaser and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b(i) 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 have been issued and no proceedings for that purpose shall have been instituted or threatened be pending or, to the knowledge of the Operating Partnership or the Company, BJI 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, (ii) the Purchaser, representations and warranties set forth in Section 1 hereof shall be contemplated by the Commissionaccurate as though expressly made at and as of such Closing Date; and (iii) each of the Operating Partnership and the Company has complied in all material respects with all agreements and BJI shall have complied with any request of the Commission for additional information (satisfied all conditions on its part to be included in the Registration Statement performed or the Prospectus satisfied at or otherwise)prior to such Closing Date.
(b) On At each of the effective date of the Registration Statement and the Closing Date, the Purchaser shall have received an opiniona certificate executed by the president or chief executive officer and the chief financial officer of the Company, dated as of such respective dateClosing Date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, to the effect that:
(i) each on behalf of the Company and BJI has been duly incorporated and is validly existing as a 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 general partner of the Commonwealth of Massachusetts;Operating Partnership, certifying that the representations and warranties contained in Section 1 are accurate as if made at the applicable Closing Date and that the conditions precedent set forth in this Section 6 have been satisfied.
(iic) At each Closing Date, the Purchaser shall have received a certificate executed by the secretary of the Company, dated as of the date hereof, on behalf of the Company and BJI has corporate power as general partner of the Operating Partnership, certifying as to own or lease its properties and conduct its business as described in the Registration Statement and resolutions of the ProspectusBoard of Directors of the Company, and each on behalf of the Company and BJI has as general partner of the Operating Partnership, and other limited partnership and corporate power proceedings relating to enter into the authorization, execution, and delivery of this Agreement and to carry out all the terms consummation of the transactions contemplated hereby.
(d) At the initial Closing Date, the Purchaser shall have received (i) the Amendment and provisions hereof the Partnership Agreement, substantially in the forms attached hereto as Exhibits A-1 and thereof 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 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 purchased by the Purchaser pursuant to this AgreementSection 3 (the “Preferred Units Certificate”), will be validly issuedduly executed by the Company, fully paid and nonassessable; in its capacity as general partner of the Conversion SharesOperating Partnership.
(e) At the initial Closing Date, including counsel for the Shares, Purchaser shall have been duly authorized for listing, subject furnished with such documents as it may reasonably require in order to official notice evidence the accuracy of issuance, on the NYSE (provided that this opinion need not be rendered on the effective date of the Registration Statement); to the knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Sharesrepresentations or warranties, including or the Sharesfulfillment of any of the conditions, herein included; and all proceedings taken by the Operating Partnership or the Company that are necessary in connection with the issuance and sale of the Preferred Units shall be satisfactory in form and substance to the knowledge of such counsel no holders of securities of Purchaser and its counsel. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Purchaser by notice to the Operating Partnership and the Company are entitled at any time at or prior to have the final Closing Date, and such securities registered 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 Registration Statement;
(iv) the statements set forth provisions concerning indemnification under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" and "Description of Waban Capital Stock" in the ProspectusSection 7 hereof, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of the Distribution" and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included provisions relating to governing law shall remain in the Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;effect.
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 obligation of ----------------------------------------- the each Purchaser to surrender for conversion Securities and to purchase and pay for any the Shares shall be subject, in the Purchaser's sole discretion, to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 is subject to the following additional conditionsconditions unless waived in writing by the relevant Purchaser:
(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 representations and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company, BJI or the Purchaser, shall be contemplated by the Commission; and each warranties of the Company contained in this Agreement shall be true and BJI correct 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; the Company shall have complied in all material respects with any request of the Commission for additional information (all agreements and satisfied in all material respects all conditions on its part to be included in performed or satisfied hereunder at or prior to the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each None of the effective date issuance and sale of the Registration Statement Shares 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 Shares or any Purchaser's activities in connection therewith or any other transactions contemplated by this Agreement or the other Basic Documents.
(c) The Purchasers shall have received certificates, dated the Closing Date and signed by the chief financial officer of the Company, to the effect of Sections 6(a) and (b).
(d) On or before the Closing Date, the Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date, subject to the Enforceability Exceptions.
(e) On or before the Closing Date, the Nasdaq National Market shall have provided verbal confirmation that no approvals are needed from such organization in order to consummate the sale of the Shares as contemplated herein.
(f) The Purchasers shall have received an opinion, dated such respective date, opinion of ▇▇▇▇ and ▇. ▇▇▇▇ LLP▇▇▇▇▇, Esq., counsel for the Company and BJI, to the effect that:Company, with respect to the authorization of the Shares and other customary matters in the form, with respect to the opinions to be given, attached hereto as EXHIBIT A.
(ig) each of the The Company shall have issued and BJI has been duly incorporated sold (or concurrently issue and is validly existing as a corporation in good standing under the laws sell) at least 2,900,000 shares 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 Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of 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 Common Stock to the Purchaser hereunder; the Conversion Shares, including the Shares, when issued by the Company upon either conversion Purchasers at a purchase price 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;at least $2.40 per share.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, hereunder are subject to the accuracy of the representations and warranties of each of the Operating Partnership and the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 hereofincluded, to the performance by each of the Operating Partnership and the Company and BJI of its covenants and agreements hereunder their respective obligations hereunder, and to the following additional further conditions:
(a) The Registration Statement shall have been declared effective not later than 5:00 P.M.At each Closing Date, New York City time, on the date hereof or such later time as the Purchaser and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b(1) 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 have been issued and no proceedings for that purpose shall have been instituted or threatened be pending or, to the knowledge of the Operating Partnership or the Company, BJI 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, (2) the Purchaser, representations and warranties set forth in Section 1 hereof shall be contemplated by the Commissionaccurate as though expressly made at and as of such Closing Date; and (3) each of the Operating Partnership and the Company has complied in all material respects with all agreements and BJI shall have complied with any request of the Commission for additional information (satisfied all conditions on its part to be included in the Registration Statement performed or the Prospectus satisfied at or otherwise)prior to such Closing Date.
(b) On At each of the effective date of the Registration Statement and the Closing Date, the Purchaser shall have received an opiniona certificate executed by the president or chief executive officer and the chief financial officer of the Company, dated as of such respective dateClosing Date, on behalf of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJIas general partner of the Operating Partnership, certifying that the representations and warranties contained in Section 1 are accurate as if made at the applicable Closing Date and that the conditions precedent set forth in this Section 6 have been satisfied.
(c) At each Closing Date, the Purchaser shall have 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 effect that: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 consummation of the transactions contemplated hereby.
(i) each 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 Company Operating Partnership, and BJI has been duly incorporated and is validly existing as a 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 on behalf of the Commonwealth existing limited partners in the Operating Partnership (via power of Massachusetts;
attorney), and the Purchaser; and (ii) each a certificate or book entry registered in the name of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in Purchaser representing the Registration Statement and the Prospectus, and each number of the Company and BJI has corporate power to enter into this Agreement and to carry out all the terms and provisions hereof and thereof Preferred Units 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 purchased by the Purchaser pursuant to this AgreementSection 3 (the “Preferred Units Certificate”), will be validly issuedduly executed by the Company, fully paid and nonassessable; in its capacity as general partner of the Conversion SharesOperating Partnership.
(d) At the initial Closing Date, including counsel for the Shares, Purchaser shall have been duly authorized for listing, subject furnished with such documents as it may reasonably require in order to official notice evidence the accuracy of issuance, on the NYSE (provided that this opinion need not be rendered on the effective date of the Registration Statement); to the knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Sharesrepresentations or warranties, including or the Sharesfulfillment of any of the conditions, herein included; and all proceedings taken by the Operating Partnership or the Company that are necessary in connection with the issuance and sale of the Preferred Units shall be satisfactory in form and substance to the knowledge of such counsel no holders of securities of Purchaser and its counsel. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Purchaser by notice to the Operating Partnership and the Company are entitled at any time at or prior to have the final Closing Date, and such securities registered 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 Registration Statement;
(iv) the statements set forth provisions concerning indemnification under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" and "Description of Waban Capital Stock" in the ProspectusSection 7 hereof, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of the Distribution" and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included provisions relating to governing law shall remain in the Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;effect.
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 to surrender for conversion Securities and to purchase and pay for any Shares the Securities as provided herein on the Closing Date shall be subject, in the Purchaser's sole discretion, subject to the accuracy satisfaction or waiver of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and following conditions on or prior to the Closing Date, as if made on and as of the Expiration Date, 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 There 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission no material breach by Holdings in the manner and within the time period required by Rule 424(b) under the Act; no stop order suspending the effectiveness performance of the Registration Statement any of its covenants, agreements or any post-effective amendment thereto and no order directed obligations herein to be performed 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, prior 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)Closing.
(b) On each The representations and warranties contained in Section 2 hereof shall be accurate in all material respects as of the effective date of Closing Date.
(c) Currently with the Registration Statement and 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 Transactions contemplated in the Offering Memorandum to be consummated on or prior to the Closing Date shall have been consummated.
(d) On the Closing Date the Purchaser shall have received an opinionthe favorable opinion of J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel of the Company, dated as of such respective dateClosing Date, the form of which is attached as Exhibit D.
(e) On the Closing Date the Purchaser shall have received the favorable opinion of ▇▇▇▇▇▇, ▇▇▇▇ and & ▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings, dated as of such Closing Date, the Company and BJIform of which is attached as Exhibit E.
(f) On the Closing Date the Purchaser 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) each for the period from and after the date of this Purchase Agreement and prior to the Company and BJI Closing Date there has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusettsnot occurred any Material Adverse Change;
(ii) each the representations, warranties and covenants of Holdings set forth in Section 2 of this Purchase Agreement are true and correct in all material respects with the same force and effect as though expressly made on and as of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of 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;Closing Date; and
(iii) each of Holdings has complied in all material respects with all the Company agreements and BJI has an authorized capitalization as satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date.
(g) On the Closing Date, the Purchaser shall have received the Warrant Agreement, duly authorized, executed and delivered by Holdings, substantially in form set forth in Exhibits C hereto.
(h) Holdings shall have received proceeds from the Prospectus; the Conversion Shares, including the Shares, sale of its common equity in an amount not less than $210.0 million.
(i) Holdings shall have been duly authorized paid all fees and reserved for issuance by all necessary corporate action expenses required to be paid as 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, Closing Date 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;accordance with Section 6 hereof.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, hereunder are subject to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 hereofincluded, to the performance by each of the Company and BJI of its covenants and agreements hereunder obligations hereunder, and to the following additional further conditions:
(a) The Registration Statement shall have been declared effective not later than 5:00 P.M.At each Closing Date, New York City time, on the date hereof or such later time as the Purchaser and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b(i) 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 have been issued and no proceedings for that purpose shall have been instituted or threatened be pending or, to the knowledge of the Company, BJI 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 Purchaser, representations and warranties set forth in Section 1 hereof shall be contemplated by the Commissionaccurate as though expressly made at and as of each such Closing Date; and each of (iii) the Company has complied in all material respects with all agreements and BJI shall have complied with any request of the Commission for additional information (satisfied all conditions on its part to be included in the Registration Statement performed or the Prospectus satisfied at or otherwise)prior to such Closing Date.
(b) On each of At the effective date of the Registration Statement and the initial Closing Date, the Purchaser shall have received an opinionthe Amendment and the Operating Agreement, dated such respective daterespectively, duly executed by the Company and on behalf of ▇▇▇▇ the existing members (via power of attorney), and ▇▇▇▇ LLPthe Purchaser.
(c) At each Closing Date, counsel for the Company and BJI, Purchaser shall have been furnished with such documents as it may reasonably require in order to evidence the effect that:
(i) each accuracy of any of the Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under representations or warranties, or the laws fulfillment of its jurisdiction of incorporation and is duly qualified to transact business as a foreign corporation and is in good standing under the laws any of the Commonwealth of Massachusetts;
(ii) each conditions, herein included; and all proceedings taken by the Company that are necessary in connection with the issuance and sale of the Company Preferred Units shall be satisfactory in form and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of 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 substance to the Purchaser hereunder; the Conversion Sharesand its counsel. If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, 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 this Agreement may be terminated 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 by notice of issuance, on the NYSE (provided that this opinion need not be rendered on the effective date of the Registration Statement); to the knowledge Company at any time at or prior to the Closing Date, and such termination shall be without liability of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such any party to any preemptive or other rights to subscribe for any party, except that the provisions concerning payment of expenses under Section 4 hereof, the Conversion Sharesprovisions concerning indemnification under Section 6 hereof, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of the Distribution" and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included provisions relating to governing law shall remain in the Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;effect.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any the Shares shall be subject, in the Purchaser's sole discretion, to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 are subject to the following additional conditions:
(a) The Registration Statement Subsequent to the date 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 or the Subsidiaries, taken as a whole, that is not described in or contemplated by the Prospectus.
(b) You shall have been declared effective not later than 5:00 P.M., New York City time, received on the date hereof or such later time as Closing Date, an opinion of Skadden, Arps, Slate, Meag▇▇▇ & ▇lom ▇▇▇ and Piper & Marbury L.L.P., dated the Purchaser Closing Date, addressed to you, to the effect set forth in Exhibit A and the Company may agree upon; if requiredExhibit B, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(brespectively, hereto.
(c) under the Act; no 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 have been issued and no proceedings for that purpose shall have been instituted or threatened taken or, to the knowledge of the Company, BJI or the Purchaser, shall be contemplated by the Commission; Commission at or prior to the Closing Date and each all the representations and warranties of the Company contained in this Agreement shall be true and BJI shall have complied with any request correct on and as of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise).
(b) On each date hereof and on and as of the effective date Closing Date as if made on and as of the Registration Statement and the Closing Date, the Purchaser and you shall have received an opiniona certificate, dated such respective datethe Closing Date and signed by the Chairman, President or Chief Financial Officer of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI(or such other officer as is acceptable to you), to the effect that:
(i) each of the Company and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of 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 this Section 6(c) and in Section 6(d) hereof.
(d) The Company shall not have failed at or prior to the Prospectus; Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Conversion Shares, including the Shares, Closing Date.
(e) The Shares shall 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 listinglisted, 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;New York Stock Exchange.
Appears in 1 contract
Sources: Purchase Agreement (Apartment Investment & Management Co)
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the each Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in consummate the Purchaser's sole discretion, Closing are subject to the accuracy satisfaction or waiver by such Purchaser on or before the Closing Date of the following conditions:
(i) No Material Adverse Effect shall have occurred since the date hereof;
(ii) The representations and warranties of each of the Company contained in this Agreement shall be true and BJI contained herein correct in all material respects as of the date hereof and as of the Expiration Date, Closing Date with the Redemption Date same force and the Closing Date, effect as if made on and as of the Expiration DateClosing Date (other than those qualified by materiality, Redemption Date and the Closing DateMaterial Adverse Effect or similar qualifications, 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company, BJI or the Purchaser, which shall be contemplated by the Commission; true in all respects), except for those representations and each warranties which address matters only as of the Company a particular date (which shall remain true and BJI shall have complied with any request correct as of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwisesuch date).
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser shall have received an opinion, dated such respective date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, to the effect that:
(i) each of the Company and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of 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 All covenants and BJI has an authorized capitalization as set forth agreements contained 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 this Agreement to the Purchaser hereunder; the Conversion Shares, including the Shares, when issued be performed 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, shall 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; performed and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statementcomplied with in all material respects;
(iv) Such Purchaser shall have received a certificate, signed by an executive officer of the statements Company, certifying as to the matters set forth under in Section 8(a)(i), (ii) and (iii);
(v) As of the headings "Information for Holders Closing Date, none of Convertible Debentures," "Description of BJI Capital Stock" the following events shall have occurred and "Description of Waban Capital Stock" be continuing: (a) trading in the ProspectusCommon Stock shall have been suspended by the Commission or the NASDAQ Capital Market; or (b) a banking moratorium shall have been declared either by U.S. federal or New York State authorities (collectively, insofar as such statements purport to summarize certain provisions a “Market Adverse Effect”);
(vi) The Company shall have complied with the requirements of the capital stock 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.
(viii) The Registration Rights Agreement shall be in full force and effect; and
(ix) Each of the Purchasers shall have received on and as of the Closing Date written evidence reasonably satisfactory to it of the good standing of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectusstate of Nevada, and under in writing or any standard form of telecommunication from the heading "Legal Proceedings" in the Company's Form 10-K, insofar as appropriate governmental authorities of such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;jurisdiction.
Appears in 1 contract
Sources: Purchase Agreement (Puissance Cross-Border Opportunities II LLC)
Conditions of the Purchaser’s Obligations. The obligations obligation of ----------------------------------------- the each Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 Securities is subject to the following additional conditionsconditions unless waived in writing by each Purchaser:
(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 representations and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company, BJI or the Purchaser, shall be contemplated by the Commission; and each warranties of the Company contained in this Agreement shall be true and BJI correct 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; the Company shall have complied in all material respects with any request of the Commission for additional information (all agreements and satisfied all conditions on its part to be included in performed or satisfied hereunder at or prior to the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each None of the effective date issuance and sale of the Registration Statement 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 Purchasers shall have received certificates, dated the Closing Date and signed by the Chief Executive Officer and the Closing DateChief Financial Officer of the Company, to the Purchaser effect of paragraphs 5(a) and (b).
(d) The Purchasers shall have received an opinion, dated such respective date, opinion of ▇▇▇▇▇▇ and & ▇▇▇▇▇▇▇ LLP, counsel for the Company and BJI, to the effect that:
(i) each of the Company and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the ProspectusCompany, and each of 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 with respect 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 authorization of the Shares, paid for by the Purchaser pursuant to this Agreement, will be validly issued, fully paid Warrants and nonassessable; the Conversion Shares, including Warrant Shares and other customary matters in the Shares, form attached hereto as Exhibit C.
(e) The Purchasers shall have been duly authorized for listing, subject to official notice a right of issuance, first refusal on any financing in which the NYSE (provided that this opinion need not be rendered on Company is the effective issuer of debt or equity securities between the Closing Date and the date of effectiveness of the Registration Statement); to .
(f) The Company shall have received the knowledge consent of such counsel, no the holders of outstanding the Company’s Convertible Senior Secured Fixed Rate Notes, as amended, to defer payments due on the Notes and other matters in substantially the form attached hereto as Exhibit D.
(g) The Company shall have delivered to Mercator Advisory Group, LLC the share certificates for the shares of capital stock the Company’s Series E Convertible Preferred Stock issued to MMF, MMF III and Focus Fund LP.
(h) The Company and the respective holders of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of Series F Stock shall have entered into an agreement that the Company are entitled to have such securities registered under the Registration Statement;
(iv) the statements set forth under the headings "Information for Holders will not issue and sell additional shares of Convertible Debentures," "Description of BJI Capital Series F Stock" and "Description of Waban Capital Stock" in the Prospectus, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, hereunder are subject to the accuracy of the representations and warranties of each of the Operating Partnership and the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 hereofincluded, to the performance by each of the Operating Partnership and the Company and BJI of its covenants and agreements hereunder their respective obligations hereunder, and to the following additional further conditions:
(a) The Registration Statement shall have been declared effective not later than 5:00 P.M.At each Closing Date, New York City time, on the date hereof or such later time as the Purchaser and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b(i) 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 have been issued and no proceedings for that purpose shall have been instituted or threatened be pending or, to the knowledge of the Operating Partnership or the Company, BJI 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, (ii) the Purchaser, representations and warranties set forth in Section 1 hereof shall be contemplated by the Commissionaccurate as though expressly made at and as of such Closing Date; and (iii) each of the Operating Partnership and the Company has complied in all material respects with all agreements and BJI shall have complied with any request of the Commission for additional information (satisfied all conditions on its part to be included in the Registration Statement performed or the Prospectus satisfied at or otherwise)prior to such Closing Date.
(b) On At each of the effective date of the Registration Statement and the Closing Date, the Purchaser shall have received an opiniona certificate executed by the president or chief executive officer and the chief financial officer of the Company, dated as of such respective dateClosing Date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, to the effect that:
(i) each on behalf of the Company and BJI has been duly incorporated and is validly existing as a 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 general partner of the Commonwealth of Massachusetts;Operating Partnership, certifying that the representations and warranties contained in Section 1 are accurate as if made at the applicable Closing Date and that the conditions precedent set forth in this Section 7 have been satisfied.
(iic) At each Closing Date, the Purchaser shall have received a certificate executed by the secretary of the Company, dated as of the date hereof, on behalf of the Company and BJI has corporate power as general partner of the Operating Partnership, certifying as to own or lease its properties and conduct its business as described in the Registration Statement and resolutions of the ProspectusBoard of Directors of the Company, and each on behalf of the Company and BJI has as general partner of the Operating Partnership, and other limited partnership and corporate power proceedings relating to enter into the authorization, execution, and delivery of this Agreement and to carry out all the terms consummation of the transactions contemplated hereby.
(d) At the initial Closing Date, the Purchaser shall have received (i) the Amendment and provisions hereof the Partnership Agreement, substantially in the forms attached hereto as Exhibits A-1 and thereof 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 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 purchased by the Purchaser pursuant to this AgreementSection 3 (the "Preferred Units Certificate"), will be validly issuedduly executed by the Company, fully paid and nonassessable; in its capacity as general partner of the Conversion SharesOperating Partnership.
(e) At the initial Closing Date, including counsel for the Shares, Purchaser shall have been duly authorized for listing, subject furnished with such documents as it may reasonably require in order to official notice evidence the accuracy of issuance, on the NYSE (provided that this opinion need not be rendered on the effective date of the Registration Statement); to the knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Sharesrepresentations or warranties, including or the Sharesfulfillment of any of the conditions, herein included; and all proceedings taken by the Operating Partnership or the Company that are necessary in connection with the issuance and sale of the Preferred Units shall be satisfactory in form and substance to the knowledge of such counsel no holders of securities of Purchaser and its counsel. 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 Operating Partnership and the Company are entitled at any time at or prior to have the final Closing Date, and such securities registered termination shall be without liability of any party to any other party, except that the provisions concerning payment of expenses under Section 6 hereof, the Registration Statement;
(iv) the statements set forth provisions concerning indemnification under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" and "Description of Waban Capital Stock" in the ProspectusSection 8 hereof, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of the Distribution" and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included provisions relating to governing law shall remain in the Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;effect.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, hereunder are subject to the accuracy accuracy, when made and on the Closing Date, of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 hereofherein, to the performance by the Company of its obligations hereunder, and to each of the Company and BJI of its covenants and agreements hereunder and to the following additional terms and conditions:
(a) The Registration Statement All corporate proceedings and other legal matters incident to the authorization, 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 have been declared effective not later than 5:00 P.M.furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(b) ▇▇▇▇▇▇▇, New York City timeoutside Mauritius counsel for the Company shall have furnished to the Purchaser its written opinion, on as counsel to the date hereof or Company, addressed to the Purchaser and dated the Closing Date, in form and substance reasonably satisfactory to the Purchaser, substantially in the form attached hereto as Exhibit A-1.
(c) The Company shall have furnished to the Purchaser a certificate, dated the Closing Date, of its Chief Executive Officer and its Chief Financial Officer as to such later time matters as the Purchaser may reasonably request, including, without limitation, a statement:
(i) That the representations, warranties and agreements of the Company in Section 1 are true and correct on and as of the Closing Date, and the Company may agree upon; if required, has complied with all its agreements contained herein and satisfied all the Prospectus and any amendment conditions on its part to be performed or supplement thereto shall have been filed with satisfied hereunder at or prior to the Commission in the manner and within the time period required by Rule 424(bClosing Date;
(ii) under the Act; That 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 have has been issued issued; and no proceedings or examination for that purpose shall have been instituted or threatened or, to the knowledge of the Companysuch officers, BJI or the Purchaser, shall be contemplated by the Commission; and each of the Company and BJI shall have complied with any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise).threatened;
(biii) On each of the effective date of 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, the Purchaser shall have received an opinion, dated such respective date, did not and do not contain any untrue statement of ▇▇▇▇ a material fact and ▇▇▇▇ LLP, counsel for the Company did not and BJI, do not omit to the effect that:
(i) each of the Company and BJI has been duly incorporated and is validly existing as state a 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 Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of the Company and BJI has corporate power to enter into this Agreement and to carry out all the terms and provisions hereof and thereof material fact required to be carried out by it;
stated therein or necessary to make the statements therein (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, except in the case of the SharesRegistration Statement, paid for by 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 pursuant 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, will be validly issued, fully paid and nonassessable; .
(e) The New York Stock Exchange shall have approved the Conversion Shares, including the Shares, have been duly authorized Shares for listing, subject only to official notice of issuanceissuance 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, on exclusive of any Equity Shares sold pursuant to the NYSE underwriter’s over-allotment option.
(provided that this opinion need not be rendered on g) The Amended and Restated Constitution of Azure Power Global Limited filed as Exhibit 3.2 to the effective date Registration Statement shall have become effective.
(h) The Company shall have delivered an executed counterpart of the Registration Statement); to the knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the statements set forth under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" and "Description of Waban Capital Stock" Rights Agreement in the Prospectusform attached hereto as Exhibit A-2. All opinions, insofar as such statements purport letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to summarize certain be in compliance with the provisions of hereof only if they are in form and substance reasonably satisfactory to counsel for the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;Purchaser.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the each Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in consummate the Purchaser's sole discretion, Closing are subject to the accuracy satisfaction or waiver by such Purchaser on or before the Closing Date of the following conditions:
(i) No Material Adverse Effect shall have occurred since the date hereof;
(ii) The representations and warranties of each of the Company contained in this Agreement shall be true and BJI contained herein correct in all material respects as of the date hereof and as of the Expiration Date, Closing Date with the Redemption Date same force and the Closing Date, effect as if made on and as of the Expiration DateClosing Date (other than those qualified by materiality, Redemption Date 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 Company, certifying as to the matters set forth in Section 8(a)(i), (ii) and (iii);
(v) As of the Closing Date, respectively, to the accuracy none of the statements of following events shall have occurred and be continuing: (A) trading in the officers of each of Common Stock shall have been suspended by 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:
Commission or The Nasdaq Global Select Market; or (aB) The Registration Statement a banking moratorium shall have been declared effective not later than 5:00 P.M., either by U.S. federal or New York City timeState authorities (collectively, on the date hereof or such later time as the Purchaser and the a “Market Adverse Effect”);
(vi) The Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall 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 request the requirements of the Commission Nasdaq Stock Market, Inc., for additional information (to be included in the Registration Statement or listing of the Prospectus or otherwise).Shares on The Nasdaq Global Select Market; and
(bvii) On each Each of the effective date 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 of the Registration Statement and the Closing Date, the Purchaser shall have received an opinion, dated such respective date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, to the effect thatfollowing conditions:
(i) each of the Company The Registration Rights Agreement shall be in full force and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusettseffect;
(ii) each Each of the Institutional Purchasers shall have received on and as of the Closing Date written evidence reasonably satisfactory to it of the good standing of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and ▇▇▇▇▇▇▇▇ Islands, in writing or any standard form of telecommunication from the Prospectus, and each appropriate governmental authorities of 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 itsuch jurisdiction;
(iii) each of the Company and BJI has an authorized capitalization as set forth in the Prospectus; the Conversion Shares, including the Shares, The Specified Amendments shall have been duly authorized executed and reserved for issuance delivered by all necessary corporate action of the Company upon either conversion of the Securities or issuance to the Purchaser hereunder; the Conversion Sharesparties thereto and shall be in full force and effect, 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, copies thereof shall have been duly authorized for listing, subject delivered to official notice of issuance, on the NYSE (provided that this opinion need not be rendered on the effective date of the Registration Statement)each Institutional Purchaser; to the knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;and
(iv) the statements set forth under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" The Letter Agreement shall have been executed and "Description of Waban Capital Stock" delivered by all parties thereto and shall be in the Prospectus, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; full force and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectuseffect, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred copy thereof shall have been delivered to therein, are correct in all material respects;each Institutional Purchaser.
Appears in 1 contract
Sources: Purchase Agreement (Monarch Alternative Capital LP)
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and Purchasers to purchase and pay for any Shares the Purchasers' Bonds shall be subject, subject in the Purchaser's sole discretion, their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of each of the Company and BJI herein contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 obligations 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no 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 have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or threatened or, by the Commission prior 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser You shall have received an opinion, dated such respective datethe Closing Date, of ▇▇▇▇ and ▇▇▇▇▇ LLP& ▇▇▇▇, counsel for the Company and BJICompany, to the effect that:
(i) each of the The Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation Kansas, with power and is duly qualified to transact business as a foreign corporation authority (corporate and is in good standing under the laws of the Commonwealth of Massachusetts;
(iiother) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Prospectus;
(ii) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Bonds have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Bonds 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 Bonds or the execution, delivery and performance by the Company of the Supplemental Indenture, the Purchased Bonds, 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);
(iii) Neither the issuance, sale and delivery of the Purchased Bonds nor the execution, delivery and performance by the Company of this Agreement, any Delayed Delivery Contract or the Purchased Bonds 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
(iv) 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 as a for- eign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Prospectus;
(iii) The Purchasers' Bonds have been duly authorized, executed, issued and delivered by the Company and constitute, and the Contract Bonds 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 the enforcement of the security provided by the Indenture or by general principles of equity and, (A) as to the Company's interest in the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, St. ▇▇▇▇▇▇ Light & Power Company and the Company and of any other agreements by the Company relating to its interest in such station and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility;
(iv) 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 the enforcement of the security provided by the Indenture or by general principles of equity and, (A) as to the Company's interest in the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, St. ▇▇▇▇▇▇ Light & Power Company and the Company and of any other agreements by the Company relating to its interest in such station and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility;
(v) The Indenture constitutes a direct and valid mortgage lien upon substantially all of the properties and assets of the Company specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been disposed of, or released from the lien thereof, in accordance with the terms thereof) and will create a similar lien upon all properties and assets acquired by the Company after the date hereof located in counties in which the Indenture has been recorded and required to be subjected to the lien of the Indenture when acquired by the Company; the Indenture (except as otherwise herein stated with respect to the Supplemental Indenture) has been duly recorded as a mortgage of real estate or recorded or filed as a chattel mortgage in each county or recording or filing district in which any of the properties or assets of the Company subject to the lien of the Indenture are situated; the Supplemental Indenture has been filed for record as a mortgage of real estate in Cherokee County, Kansas and in ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ Counties, Missouri (and specifying any other recording or filing at the Closing Date) and, upon the Supplemental Indenture being duly filed and recorded as a mortgage of real estate in all other counties in the States of Arkansas, Kansas and Missouri in which real estate subject to the lien of the Indenture is located and being filed as a chattel mortgage in the office of the Secretary of State of each of the States of Kansas, Missouri and Oklahoma, and upon the filing of an appropriate amendment to a financing statement in the office of the Secretary of State of the State of Arkansas, no further recording or filing and, under present law, no periodic or other re-recording or refiling of the Indenture or any other instrument will be required in order to preserve and protect the lien of the Indenture either as a mortgage on real estate or as a chattel mortgage except that if the Company shall hereafter acquire property in any county in which the Indenture shall not be of record, further recording or filing may be required, depending upon the law of the State in which such county is located;
(vi) All taxes and recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma to be paid with respect to the execution, recording or filing of the Indenture and the issuance of the Purchased Bonds have been paid except such fees as are not payable until the filing for record of the Supplemental Indenture in the offices mentioned in the next preceding paragraph in which it has not been filed on the Closing Date, provision for the payment of which fees has been made by the Company, and upon payment of such fees by the Company no taxes or recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma with respect to the execution, recording or filing of the Indenture or the issuance of the Purchased Bonds will be payable;
(vii) The Company has good and marketable title in fee simple to substantially all real and fixed properties and good and marketable title to substantially all other properties and assets specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been disposed of, or released from the lien thereof, in accordance with the terms thereof), in each case free and clear of all liens, charges and encumbrances prior to the lien of the Indenture except permitted encumbrances as defined in the Indenture (it being un- derstood that such foregoing opinion may be based (1) on searches of available public records performed within five business days prior to the Closing Date and (2) upon a certificate of the Company); and the descriptions of all such properties and assets contained in the granting clauses of the Indenture are correct and adequate for the purposes of the Indenture;
(viii) The Indenture and the Purchased Bonds conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(ix) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(x) Neither the issuance, sale and delivery of the Purchased Bonds nor the execution, delivery and performance by the Company of this Agreement, any Delayed Delivery Contract, the Supplemental Indenture or the Purchased Bonds will conflict with, violate or result in breach of any Missouri 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 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 a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or 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 properties or assets of the Company (other than the lien of the Indenture);
(xi) 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 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 Prospectus; and
(xii) Other than disclosed or contemplated by the Registration Statement and the Prospectus, and each there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. may rely, as to the incorporation of the Company and BJI has corporate power all matters governed by Kansas law, upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇ referred to enter into in paragraph (b) above and, as to all matters covered thereby, upon the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) 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 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 Bonds have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Bonds 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 States of Missouri, Oklahoma or Arkansas is legally required for the issuance, sale and delivery of the Purchased Bonds or the execution, delivery and performance by the Company of the Supplemental Indenture, the Purchased Bonds, this Agreement and or any Delayed Delivery Contract (it being understood that such counsel need express no opinion as to carry out all any approvals which may be required under the terms and provisions hereof and thereof to be carried out by it;securities acts or Blue Sky laws of any jurisdiction).
(iiie) each You shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, to the effect that:
(i) The Purchasers' Bonds have been duly authorized, executed, issued and delivered by the Company and BJI has an authorized capitalization as set forth in constitute, and the Prospectus; the Conversion Shares, including the Shares, Contract Bonds have been duly authorized and reserved for issuance by all necessary corporate action of when executed and authenticated in accordance with the Company upon either conversion of the Securities or issuance Indenture and delivered 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, and paid for by the Purchaser purchasers pursuant to this AgreementDelayed Delivery Contracts will constitute, will be validly issued, fully paid valid 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 knowledge of such counsel, no holders of outstanding shares of capital stock legally binding obligations of the Company are entitled to the benefits and security provided by the Indenture except as such to any preemptive the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights to subscribe for any or the enforcement of the Conversion Sharessecurity provided by the Indenture or by general principles of equity and, including the Shares; and (A) as to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-Kinterest in the Iatan Generating Station, insofar except as such statements constitute a summary the same may be limited by the terms of the legal mattersIatan Station Ownership Agreement, documents or proceedings referred to thereindated July 31, are correct in all material respects;1978, among Kansas City Power & Light Company, St. ▇▇▇▇▇▇ Light & Power Company and the Company and
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of ----------------------------------------- the each Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 Securities is subject to the following additional conditionsconditions unless waived in writing by the relevant Purchaser:
(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 representations and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company, BJI or the Purchaser, shall be contemplated by the Commission; and each warranties of the Company contained in this Agreement shall be true and BJI correct 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; the Company shall have complied in all material respects with any request of the Commission for additional information (all agreements and satisfied all conditions on its part to be included in performed or satisfied hereunder at or prior to the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On 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 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 effective date articles of incorporation of the Registration Statement 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 certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect of paragraphs 5(a) and (b).
(e) On or before the Closing Date, the Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date, subject to the Enforceability Exceptions.
(f) The Purchasers and Placement Agent shall have received an opinionopinion of Gray Cary Ware & Freidenrich LLP, dated such respective datecounsel to the Company, of with respect ▇▇ t▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, to the effect that:
(i) each ization of the Company and BJI has been duly incorporated and is validly existing as a 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 shares of the Commonwealth of Massachusetts;
(ii) each of Series E Preferred Stock, the Company Conversion Shares and BJI has corporate power to own or lease its properties the Warrant Shares, and conduct its business as described other customary matters in the Registration Statement and the Prospectus, and each of 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 form attached hereto 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;Exhibit C.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, hereunder are subject to the accuracy of the representations and warranties of each of the Operating Partnership and the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 hereofincluded, to the performance by each of the Operating Partnership and the Company and BJI of its covenants and agreements hereunder their respective obligations hereunder, and to the following additional further conditions:
(a) The Registration Statement shall have been declared effective not later than 5:00 P.M.At each Closing Date, New York City time, on the date hereof or such later time as the Purchaser and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b(i) 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 have been issued and no proceedings for that purpose shall have been instituted or threatened be pending or, to the knowledge of the Operating Partnership or the Company, BJI 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, (ii) the Purchaser, representations and warranties set forth in Section 1 hereof shall be contemplated by the Commissionaccurate as though expressly made at and as of such Closing Date; and (iii) each of the Operating Partnership and the Company has complied in all material respects with all agreements and BJI shall have complied with any request of the Commission for additional information (satisfied all conditions on its part to be included in the Registration Statement performed or the Prospectus satisfied at or otherwise)prior to such Closing Date.
(b) On At each of the effective date of the Registration Statement and the Closing Date, the Purchaser shall have received an opiniona certificate executed by the president or chief executive officer and the chief financial officer of the Company, dated as of such respective dateClosing Date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, to the effect that:
(i) each on behalf of the Company and BJI has been duly incorporated and is validly existing as a 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 general partner of the Commonwealth of Massachusetts;Operating Partnership, certifying that the representations and warranties contained in Section 1 are accurate as if made at the applicable Closing Date and that the conditions precedent set forth in this Section 6 have been satisfied.
(iic) At each Closing Date, the Purchaser shall have received a certificate executed by the secretary of the Company, dated as of the date hereof, on behalf of the Company and BJI has corporate power as general partner of the Operating Partnership, certifying as to own or lease its properties and conduct its business as described in the Registration Statement and resolutions of the Prospectusboard of directors of the Company, and each on behalf of the Company and BJI has as general partner of the Operating Partnership, and other limited partnership and corporate power proceedings relating to enter into the authorization, execution, and delivery of this Agreement and to carry out all the terms consummation of the transactions contemplated hereby.
(d) 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 provisions hereof the Purchaser; and thereof (ii) a certificate or book entry registered in the name of the Purchaser representing the number of Preferred Units 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 purchased by the Purchaser pursuant to this AgreementSection 3 (the “Preferred Units Certificate”), will be validly issuedduly executed by the Company, fully paid and nonassessable; in its capacity as general partner of the Conversion SharesOperating Partnership.
(e) At the initial Closing Date, including counsel for the Shares, Purchaser shall have been duly authorized for listing, subject furnished with such documents as it may reasonably require in order to official notice evidence the accuracy of issuance, on the NYSE (provided that this opinion need not be rendered on the effective date of the Registration Statement); to the knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Sharesrepresentations or warranties, including or the Sharesfulfillment of any of the conditions, herein included; and all proceedings taken by the Operating Partnership or the Company that are necessary in connection with the issuance and sale of the Preferred Units shall be satisfactory in form and substance to the knowledge of such counsel no holders of securities of Purchaser and its counsel. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Purchaser by notice to the Operating Partnership and the Company are entitled at any time at or prior to have the final Closing Date, and such securities registered 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 Registration Statement;
(iv) the statements set forth provisions concerning indemnification under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" and "Description of Waban Capital Stock" in the ProspectusSection 7 hereof, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of the Distribution" and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included provisions relating to governing law shall remain in the Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;effect.
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 to surrender for conversion Securities and Purchasers to purchase and pay for any Shares the Purchased Debt Securities shall be subject, subject in the Purchaser's sole discretion, their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of each of the Company and BJI herein contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 obligations 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no 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 have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or threatened or, by the Commission prior 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser You shall have received an opinion, dated such respective datethe Closing Date, of A▇▇▇▇▇▇▇ and & B▇▇▇▇ , LLP, Kansas counsel for the Company and BJICompany, to the effect that:
(i) each of the The Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation Kansas, with power and is duly qualified to transact business as a foreign corporation authority (corporate and is in good standing under the laws of the Commonwealth of Massachusetts;
(iiother) each of the Company and BJI has corporate power to own or lease 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 as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(iv) 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 breach of any Missouri 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 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 a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or 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 properties or assets of the Company;
(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 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 counsel need express no opinion as to the financial statements or other 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 of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of A▇▇▇▇▇▇▇ & B▇▇▇, LLP referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) 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 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 C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, counsel for the Company, to the effect that:
(i) 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;
(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 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, 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 BJI has corporate power as to enter into this Agreement and to carry out all other matters governed by the terms and provisions hereof and thereof to be carried out by it;
(iii) each laws of the Company States of Kansas, Missouri, Arkansas and BJI has an authorized capitalization as set forth 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 the Prospectus; the Conversion Shares, including the Shares, have been duly authorized conferences with officers and reserved for issuance by all necessary corporate action other representatives of the Company upon either conversion Company, representatives of the Securities or issuance to independent registered public accounting firm for the Purchaser hereunder; Company, representatives of counsel for the Conversion Shares, including the Shares, when issued by the Company upon either conversion Purchasers and representatives of the Securities or issuance to Purchasers at which 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 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 knowledge 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 counselmatters 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 holders of outstanding shares of capital stock 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 are entitled as such by the President, or the Vice President - Finance, stating in effect that to any preemptive or other rights to subscribe for any the best knowledge of the Conversion Shares, including officer signing such certificate and except as may be reflected in or contemplated by the Shares; and Registration Statement or stated in such certificate: (i) subsequent to the knowledge respective dates as of which information is given in the General Use Disclosure Package and the Prospectus, there has been no such counsel no holders of securities Material Adverse Change; (ii) the representations and warranties of the Company contained in Section 3 of this Agreement are entitled correct and the Company has complied with all the agreements and satisfied all the conditions to have such securities registered under 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;
(iv) the statements set forth under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" Statement has been issued and "Description of Waban Capital Stock" in the Prospectus, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;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 to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 Securities is subject to the following additional conditionsconditions unless waived in writing by the relevant Purchaser:
(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 representations and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company, BJI or the Purchaser, shall be contemplated by the Commission; and each warranties of the Company contained in this Agreement shall be true and BJI correct 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; the Company shall have complied in all material respects with any request of the Commission for additional information (all agreements and satisfied all conditions on its part to be included in performed or satisfied hereunder at or prior to the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each None of the effective date issuance and sale of the Registration Statement 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 Purchasers and Placement Agent shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect of paragraphs 6(a) and (b).
(d) On or before the Closing Date, the Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date, subject to the Enforceability Exceptions.
(e) The Purchasers and Placement Agent shall have received an opinion, dated such respective date, opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ LLP& ▇▇▇▇▇▇▇ L.L.P., counsel for the Company and BJI, to the effect that:
(i) each Company, with respect to the authorization of the Company Shares and BJI has been duly incorporated the Warrant Shares and is validly existing other customary matters in substantially the form attached hereto as a corporation in good standing under the laws of its jurisdiction of incorporation Exhibit C and is duly qualified subject to transact business as a foreign corporation customary assumptions, limitations and is in good standing under the laws qualifications for transactions of the Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of 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 type contemplated 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;Transaction Documents.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and Purchasers to purchase and pay for any Shares the Purchasers' Debt Securities shall be subject, subject in the Purchaser's sole discretion, their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of each of the Company and BJI herein contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 obligations 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no 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 have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or threatened or, by the Commission prior 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser You shall have received an opinion, dated such respective datethe Closing Date, of ▇▇▇▇ and ▇▇▇▇▇ LLP& ▇▇▇▇, Kansas counsel for the Company and BJICompany, to the effect that:
(i) each of the The Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation Kansas, with power and is duly qualified to transact business as a foreign corporation authority (corporate and is in good standing under the laws of the Commonwealth of Massachusetts;
(iiother) each of the Company and BJI has corporate power to own or lease 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 as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Prospectus;
(iii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(iv) 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 breach of any Missouri 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 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 a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or 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 properties or assets of the Company;
(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 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 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 of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇ referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) 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 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, 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 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, 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 BJI 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 corporate power 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 enter into this Agreement 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 carry out all the terms attention of such counsel which lead such counsel to believe that the Registration Statement, and provisions hereof and thereof 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 carried out 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 itreference 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) each of The Indenture and the Company and BJI has an authorized capitalization Purchased Debt Securities conform as set forth to legal matters in all material respects to the descriptions thereof contained in the Prospectus; ;
(iv) All approvals of the Conversion SharesState Corporation Commission of the State of Kansas which are required for the issuance, including sale and delivery of the Shares, Purchased Debt Securities have been duly authorized obtained, and reserved for issuance by all necessary corporate action 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 Company upon either conversion securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under 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 hereunderAct, 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 knowledge best of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel (after inquiry), no holders of securities stop order suspending the effectiveness of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;R
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of ----------------------------------------- the each Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 Preferred Stock is subject to the following additional conditionsconditions unless waived in writing by each Purchaser:
(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 representations and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company, BJI or the Purchaser, shall be contemplated by the Commission; and each warranties of the Company contained in this Agreement shall be true and BJI correct 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; the Company shall have complied in all material respects with any request of the Commission for additional information (all agreements and satisfied all conditions on its part to be included in performed or satisfied hereunder at or prior to the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each None of the effective date issuance and sale of the Registration Statement Preferred Stock 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 any Purchaser relating to the issuance of the Preferred Stock 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 Purchasers shall have received certificates, dated the Closing Date and signed by the Chief Executive Officer and the Closing DateChief Financial Officer of the Company, to the Purchaser effect of paragraphs 5(a) and (b).
(d) The Purchasers shall have received an opinionopinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, dated such respective datecounsel to the Company, with respect to the authorization of the Preferred Stock and the Conversion Shares and other customary matters in the form attached hereto as Exhibit C-1.
(e) The Purchasers shall have received an opinion of Sidley Austin LLP, counsel to the Company, with respect to the matters in the form attached hereto as Exhibit C-2.
(f) All of the conditions precedent to the obligations of the Company contained in Article VIII of the Contribution Agreement shall have been satisfied.
(g) The Company shall have entered into employment agreements with each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇, and employment or consulting agreements with each of ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ LLP▇▇▇▇ (together with Messrs. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, counsel for the Company and BJI, “Management”). The equity compensation payable to the effect that:
(i) each of the Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and is duly qualified Management pursuant to transact business as a foreign corporation and is in good standing under the laws of the Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of 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 such employment and/or consulting agreements shall be carried out by it;
(iii) each of the Company and BJI has an authorized capitalization substantially 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;Schedule B hereto.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of ----------------------------------------- the each Purchaser to surrender for conversion Securities and to purchase and pay for any the Shares shall be subject, in the Purchaser's sole discretion, to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 is subject to the following additional conditionsconditions unless waived in writing by the relevant Purchaser:
(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 representations and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company, BJI or the Purchaser, shall be contemplated by the Commission; and each warranties of the Company contained in this Agreement shall be true and BJI correct 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; the Company shall have complied in all material respects with any request of the Commission for additional information (all agreements and satisfied all conditions on its part to be included in performed or satisfied hereunder at or prior to the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each None of the effective date issuance and sale of the Registration Statement Shares 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 Shares or any Purchaser’s activities in connection therewith or any other transactions contemplated by this Agreement or the Disclosure Documents or the other Basic Documents.
(c) The Purchasers shall have received certificates, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company, to the effect of paragraphs 5(a) and (b).
(d) On or before the Closing Date, the Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date, subject to the Enforceability Exceptions.
(e) On or before the Closing Date, the Nasdaq National Market shall have provided verbal confirmation that no approvals are needed from such organization in order to consummate the sale of the Shares as contemplated herein.
(f) The Purchasers shall have received an opinion, dated such respective date, opinion of ▇▇▇▇ and ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel for the Company and BJI, to the effect that:
(i) each Company, with respect to the authorization of the Company Shares and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described other customary matters in the Registration Statement and the Prospectus, and each of 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 form attached hereto 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;Exhibit A.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and Purchasers to purchase and pay for any Shares the Purchasers' Debt Securities shall be subject, subject in the Purchaser's sole discretion, their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of each of the Company and BJI herein contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 obligations 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no 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 have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or threatened or, by the Commission prior 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser You shall have received an opinion, dated such respective datethe Closing Date, of ▇▇▇▇ and ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ LLP& ▇▇▇▇▇▇▇▇, Kansas counsel for the Company and BJICompany, to the effect that:
(i) each of the The Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation Kansas, with power and is duly qualified to transact business as a foreign corporation authority (corporate and is in good standing under the laws of the Commonwealth of Massachusetts;
(iiother) each of the Company and BJI has corporate power to own or lease 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); 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C., 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 as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Prospectus;
(iii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(iv) 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 breach of any Missouri 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 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 a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or 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 properties or assets of the Company; and
(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, 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 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 Prospectus. In rendering such opinion, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) 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 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, 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, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may rely, as to the incorporation of the Company and BJI 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 corporate power 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 enter into this Agreement 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 carry out all the terms attention of such counsel which would lead such counsel to believe that either the Registration Statement or the Prospectus, and provisions hereof and thereof 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 carried out 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 itreference 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 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) each of The Indenture and the Company and BJI has an authorized capitalization Purchased Debt Securities conform as set forth to legal matters in all material respects to the descriptions thereof contained in the Prospectus; ;
(iv) All approvals of the Conversion SharesState Corporation Commission of the State of Kansas which are required for the issuance, including sale and delivery of the Shares, Purchased Debt Securities have been duly authorized obtained, and reserved for issuance by all necessary corporate action 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 Company upon either conversion securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under 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 hereunderAct, and, in to the case best 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 knowledge of such counsel, no holders of outstanding shares of capital stock stop order suspending the effectiveness of the Company Registration Statement has been issued and no proceedings for that purpose have been instituted or are entitled as such to any preemptive pending or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered contemplated under the Registration Statement;
(iv) the 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 ProspectusAct, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of the Distribution" Registration Statement and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included in the Prospectus, and under each amendment or supplement thereto (except, in each case, as to the heading "Legal Proceedings" in financial statements or other financial or statistical information included therein and the Company's Form 10-K, insofar as such statements constitute a summary T-1 of the legal mattersTrustee, documents as to which such counsel need not express an opinion), as of their respective effective or proceedings referred issue dates, appeared to therein, are correct comply as to form in all material respects;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, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. referred to above. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP need not express any opinion with respect to the matters set forth in paragraphs (i), (ii) and (iv) of the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. referred to above. In addition, such counsel shall state that such counsel has participated in conferences with
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and Purchasers to purchase and pay for any Shares the Purchasers' Debt Securities shall be subject, subject in the Purchaser's sole discretion, their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of each of the Company and BJI herein contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 obligations 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no 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 have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or threatened or, by the Commission prior 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser You shall have received an opinion, dated such respective datethe Closing Date, of ▇▇▇▇ and ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ LLP& ▇▇▇▇▇▇▇▇, counsel for the Company and BJICompany, to the effect that:
(i) each of the The Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation Kansas, with power and is duly qualified to transact business as a foreign corporation authority (corporate and is in good standing under the laws of the Commonwealth of Massachusetts;
(iiother) each of the Company and BJI has corporate power to own or lease 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 Pur- chased 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C., 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 as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Prospectus;
(iii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(iv) 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 breach of any Missouri 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 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 a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or 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 properties or assets of the Company; and
(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, 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 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 Prospectus. In rendering such opinion, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, 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 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 coun- sel 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may rely, as to the incorporation of the Company and BJI 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 corporate power 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 in the Registration Statement and Prospectus, or any subsequent amendments or supplements thereto, on the basis of the foregoing (relying as to enter into this Agreement materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts have come to carry out all the terms attention of such counsel which lead such counsel to believe that either the Registration Statement or the Prospectus, and provisions hereof and thereof 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 carried out 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 Form T-1 of the Trustee).
(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, authenticated, issued and delivered by itthe 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) each of The Indenture and the Company and BJI has an authorized capitalization Purchased Debt Securities conform as set forth to legal matters in all material respects to the descriptions thereof contained in the Prospectus; ;
(iv) All approvals of the Conversion SharesState Corporation Commission of the State of Kansas which are required for the issuance, including sale and delivery of the Shares, Purchased Debt Securities have been duly authorized obtained, and reserved for issuance by all necessary corporate action 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 Company upon either conversion securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under 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 hereunderAct, and, in to the case best 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 knowledge of such counsel, no holders of outstanding shares of capital stock stop order suspending the effectiveness of the Company Registration Statement has been issued and no proceedings for that purpose have been instituted or are entitled as such to any preemptive pending or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered contemplated under the Registration Statement;
(iv) the 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 ProspectusAct, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of the Distribution" Registration Statement and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included in the Prospectus, and under each amendment or supplement thereto (except, in each case, as to the heading "Legal Proceedings" in financial statements or other financial or statistical information included therein and the Company's Form 10-K, insofar as such statements constitute a summary T-1 of the legal mattersTrustee, documents as to which such counsel need not express an opinion), as of their respective effective or proceedings referred issue dates, appeared to therein, are correct comply as to form in all material respects;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, Arkansas and Oklahoma, and covered by their respective opinions, upon the opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation; and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. referred to above. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP need not express any opinion with respect to the matters set forth in paragraphs (i), (ii) and (iv) of the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, 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, representat
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and Purchasers to purchase and pay for any Shares the Purchased Debt Securities shall be subject, subject in the Purchaser's sole discretion, their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of each of the Company and BJI herein contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 obligations 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no 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 have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or threatened or, by the Commission prior 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser You shall have received an opinion, dated such respective datethe Closing Date, of A▇▇▇▇▇▇▇ and & B▇▇▇▇ , LLP, Kansas counsel for the Company and BJICompany, to the effect that:
(i) each of the The Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation Kansas, with power and is duly qualified to transact business as a foreign corporation authority (corporate and is in good standing under the laws of the Commonwealth of Massachusetts;
(iiother) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement 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 each 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 and BJI has corporate power entitled to enter into this Agreement and the benefits provided by the Indenture, except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to carry out all or affecting the terms and provisions hereof and thereof to be carried out enforcement of creditors’ rights or by itgeneral principles of equity;
(iii) each 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 BJI 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 an authorized capitalization been duly incorporated and is validly existing as set forth 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 Conversion SharesCompany is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, including Missouri and Oklahoma, which are the Sharesonly jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(iv) 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 breach of any Missouri 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 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 a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or 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 properties or assets of the Company;
(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 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 counsel need express no opinion as to the financial statements or other 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 of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated 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 (b) above and, as to all matters covered thereby, upon the opinion of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) 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 effect; and no further 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 or “blue sky” laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ llp, counsel for the Company, to the effect that:
(i) 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 reserved for issuance by all necessary corporate action of when executed and authenticated in accordance with the Company upon either conversion of the Securities or issuance Indenture and delivered 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, and paid for by the Purchaser purchasers pursuant to this AgreementDelayed Delivery Contracts will constitute, will be validly issued, fully paid valid 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 knowledge of such counsel, no holders of outstanding shares of capital stock legally binding obligations of the Company are entitled to the benefits provided by the Indenture except as such to any preemptive the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights to subscribe for any 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 Conversion SharesCompany enforceable in accordance with its terms except as the same may be limited by bankruptcy, including insolvency, reorganization or other laws relating to or affecting the Shares; 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, 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 has become effective under the Act, and, to the best of the knowledge of such counsel (after inquiry), no holders stop order suspending the effectiveness of securities the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the 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 are entitled by the President, or the Vice President - Finance, stating in effect that to have the best knowledge of the officer signing such securities registered under certificate and except as may be reflected in or contemplated by the Registration Statement;
Statement or stated in such certificate: (ivi) subsequent to the statements set forth under respective dates as of which information is given in the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" General Use Disclosure Package and "Description of Waban Capital Stock" in the Prospectus, insofar as there has been no such statements purport to summarize certain provisions of Material Adverse Change; (ii) the capital stock representations and warranties of the Company or BJI, contained in Section 3 of this Agreement are correct in all material respects; and the statements set forth under Company has complied with all the headings "The Distribution--Federal Income Tax Aspects of agreements and satisfied all 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents conditions to be performed or proceedings referred to therein, are correct in all material respects;satisfie
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall the Bonds will be subject, in the Purchaser's sole discretion, subject to the accuracy of the representations and warranties of each on the part of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 hereofIssuer herein, to the performance by each the Issuer and the Tenant of the Company and BJI of its covenants and agreements their respective obligations hereunder and to the following additional conditionsconditions 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:
(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) 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no stop order suspending the effectiveness each of the Registration Statement or any post-effective amendment thereto representations 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge warranties of the CompanyIssuer set forth in Section 1 hereof is true, BJI or accurate and complete in all material respects as of the PurchaserClosing Time, shall be contemplated by the Commission; and each of the Company and BJI shall have agreements of the Issuer set forth in this Agreement to be complied with any request at or prior to the Closing Time has been complied with as of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise).such time; and
(b) On each no litigation is pending, or to his knowledge threatened, to restrain or enjoin the issuance, execution, sale or delivery of the effective 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.
(4) A certificate or certificates, satisfactory in form and substance to Bond Counsel and the Purchaser, of authorized member of the Tenant dated the date of the Registration Statement and the Closing Date, the Purchaser shall have received an opinion, dated such respective date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, closing to the effect that:
(ia) each of the Company representations and BJI has been duly incorporated and is validly existing as a 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 warranties of the Commonwealth of Massachusetts;
(ii) each Tenant set forth in Section 2 hereof is true, accurate and complete in all material respects as of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the ProspectusClosing Time, and each of 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 agreements of the Company and BJI has an authorized capitalization as Tenant 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 this Agreement to be complied with at or issuance prior to the Purchaser hereunderClosing Time has been complied with as of such time; and
(b) insofar as the Conversion Sharessigners of such certificate or certificates are aware, including after reasonable investigation, since the Shares, when issued by the Company upon either conversion date 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; there has been no material adverse change in 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 property or financial position of the Registration Statement)Tenant or results of operation of the Tenant; and
(c) no litigation is pending, or to the knowledge of such counselthe Tenant threatened, no holders of outstanding shares of capital stock to restrain or enjoin the issuance, execution, sale or delivery of the Company Bonds or in any way contesting or affecting any authority for issuance or the validity of the Bonds, the Lease or this Agreement or the creation, existence, or powers of the Tenant to lease the Project.
(5) Certified conformed copies or manually executed counterparts of the Ordinance, the Indenture and the Lease.
(6) 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:
(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 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 Congress, with the purpose or effect of prohibiting the issuing, offering or sale of the Bonds as contemplated hereby; or
(4) 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 entitled as such to any preemptive not satisfied or other rights to subscribe if the obligations of the Purchaser shall be terminated for any of reason permitted by this Agreement, this Agreement shall terminate and neither the Conversion Shares, including Purchaser nor the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to Issuer shall have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;any further obligations hereunder.
Appears in 1 contract
Sources: Bond Placement Agreement
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and Purchasers to purchase and pay for any Shares the Purchased Bonds shall be subject, subject in the Purchaser's sole discretion, their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of each of the Company and BJI herein contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 obligations 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no 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 have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or threatened or, by the Commission prior 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser You shall have received an opinion, dated such respective datethe Closing Date, of ▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇, LLP, Kansas counsel for the Company and BJICompany, to the effect that:
(i) each of the The Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation Kansas, with power and is duly qualified to transact business as a foreign corporation authority (corporate and is in good standing under the laws of the Commonwealth of Massachusetts;
(iiother) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement Statement, the General Use Disclosure Package and the Prospectus, and each ;
(ii) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Bonds have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Bonds 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 Bonds or the execution, delivery and performance by the Company and BJI has corporate power to enter into of the Supplemental Indenture, the Purchased Bonds, any Delayed Delivery Contracts or this Agreement and (it being understood that such counsel need express no opinion as to carry out all any approvals which may be required under the terms and provisions hereof and thereof to be carried out by itsecurities or “blue sky” laws of said state);
(iii) each Neither the issuance, sale and delivery of the Purchased Bonds nor the execution, delivery and performance by the Company of this Agreement, , any Delayed Delivery Contracts, the Supplemental Indenture or the Purchased Bonds 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
(iv) 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 Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) The Purchased Bonds have been duly authorized, executed, issued and delivered by the Company and BJI has an authorized capitalization as set forth in constitute, and the Prospectus; the Conversion Shares, including the Shares, Contract Bonds have been duly authorized and reserved for issuance by all necessary corporate action of when executed and authenticated in accordance with the Company upon either conversion of the Securities or issuance Indenture and delivered 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, and paid for by the Purchaser purchasers pursuant to this AgreementDelayed Delivery Contracts will constitute, will be validly issued, fully paid valid 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 knowledge of such counsel, no holders of outstanding shares of capital stock legally binding obligations of the Company are entitled to the benefits and security provided by the Indenture, except as such to any preemptive the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights to subscribe for any or the enforcement of the Conversion Shares, including security provided by the Shares; Indenture or by general principles of equity and (A) as to the knowledge of such counsel no holders of securities Company’s interest in Unit No. 1 at the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, Aquila, Inc. (as successor to St. ▇▇▇▇▇▇ Light & Power Company) and the Company are entitled and of any other agreements by the Company relating to have its interest in such securities registered under facility, (B) as to the Registration StatementCompany’s interest in Unit No. 2 at the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Unit 2 and Common Facilities Ownership Agreement, dated as of May 19, 2006, among Kansas City Power & Light Company, Aquila, Inc., the Company, Kansas Electric Power Cooperative, Inc., and Missouri Joint Municipal Electric Utility Commission and of any other agreements by the Company relating to its interest in such facility, (C) as to the Company’s interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility and (D) as to the Company’s interest in the Plum Point Energy Station, except as the same may be limited by the terms of the Participation Agreement dated as of March 3, 2006 by and among the Company, Plum Point Energy Associates, LLC, East Texas Electric Cooperative, Inc. and Missouri Joint Municipal Electric Utility Commission and of any other agreements by the Company relating to its interest in such facility (the agreements set forth in clauses (A), (B), (C) and (D), the “Plant Agreements”);
(iv) The Indenture has been duly authorized, executed and delivered by the statements set forth Company, has been duly qualified under the headings "Information for Holders Trust Indenture Act and constitutes a valid and legally binding instrument of Convertible Debentures," "Description 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 BJI Capital Stock" creditors’ rights or the enforcement of the security provided by the Indenture or by general principles of equity and "Description the Plant Agreements;
(v) The Indenture constitutes a direct and valid mortgage lien upon substantially all of Waban Capital Stock" the properties and assets of the Company specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been taken by adverse possession or may have been disposed of, or released from the lien thereof, in accordance with the terms thereof), subject to no liens, charges or encumbrances prior to the lien of the Indenture except permitted encumbrances as defined in the Indenture; the Indenture will create a similar lien upon all properties and assets acquired by the Company after the date hereof located in counties in which the Indenture has been recorded and required to be subjected to the lien of the Indenture when acquired by the Company, subject to no liens, charges or encumbrances prior to the lien of the Indenture except permitted encumbrances, liens existing or placed on such properties or assets at the time of such acquisition, and also subject to the provisions of Article 12 of the Indenture and to certain possible claims of a trustee in bankruptcy and possible claims and taxes of the federal government; the Indenture (except as otherwise herein stated with respect to the Supplemental Indenture) has been duly recorded as a mortgage of real estate or recorded or filed as a chattel mortgage in each county or recording or filing district in which any of the properties or assets of the Company subject to the lien of the Indenture are situated; upon the Supplemental Indenture being duly filed and recorded as a mortgage of real estate in each county in the States of Arkansas, Kansas and Missouri in which real estate subject to the lien of the Indenture is located and being filed as a chattel mortgage in the office of the Secretary of State of each of the States of Kansas, Missouri and Oklahoma, and upon the filing of an appropriate amendment to a financing statement in the office of the Secretary of State of the State of Arkansas, no further recording or filing and, under present law, no periodic or other re-recording or refiling of the Indenture or any other instrument will be required in order to preserve and protect the lien of the Indenture either as a mortgage on real estate or as a chattel mortgage except that if the Company shall hereafter acquire property in any county in which the Indenture shall not be of record, further recording or filing may be required, depending upon the law of the State in which such county is located;
(vi) All taxes and recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma to be paid with respect to the execution, recording or filing of the Indenture and the issuance of the Purchased Bonds have been paid except such fees as are not payable until the filing for record of the Supplemental Indenture in the offices mentioned in the next preceding paragraph in which it has not been filed on the Closing Date, provision for the payment of which fees has been made by the Company, and upon payment of such fees by the Company no taxes or recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma with respect to the execution, recording or filing of the Indenture or the issuance of the Purchased Bonds will be payable;
(vii) The Company has good and marketable title in fee simple to substantially all real and fixed properties and good and marketable title to substantially all other properties and assets specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been disposed of, or released from the lien thereof, in accordance with the terms thereof), including, without limitation, the properties of the Company referred to in Item 2. Properties in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2009, in each case free and clear of all liens, charges and encumbrances prior to the lien of the Indenture except permitted encumbrances as defined in the Indenture (it being understood that such foregoing opinion may be based (1) on searches of available public records performed within five business days prior to the Closing Date and (2) upon a certificate of the Company); and the descriptions of all such properties and assets contained in the granting clauses of the Indenture are correct and adequate for the purposes of the Indenture;
(viii) The Indenture and the Purchased Bonds 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;
(ix) This Agreement and any Delayed Delivery Contracts have been duly authorized, insofar executed and delivered by the Company;
(x) Neither the issuance, sale and delivery of the Purchased Bonds nor the execution, delivery and performance by the Company of this Agreement, any Delayed Delivery Contract, the Supplemental Indenture or the Purchased Bonds will conflict with, violate or result in breach of any Missouri 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 such statements purport to summarize certain 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 a breach of any of the terms, conditions or provisions of the capital stock Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or BJIof any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, are correct or result in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the Distribution" and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders properties or assets of Convertible Debentures" included in the Company (other than the lien of the Indenture);
(xi) 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 heading "Legal Proceedings" Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Company's Registration Statement or Prospectus pursuant to Item 11 of Form 10S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-KK under the Act 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 information contained in the General Use Disclosure Package or the Prospectus; and
(xii) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, insofar as such statements constitute there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a summary party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the legal matterstransactions contemplated hereby. In rendering such opinion, documents or proceedings ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. may rely, as to all matters governed by Kansas law covered therein, upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP referred to thereinin paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) 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 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 correct required for the issuance, sale and delivery of the Purchased Bonds have been obtained; any conditions in all material respects;such approvals required to be satisfied prior to the issuance of the Purchased Bonds 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 States of Missouri, Oklahoma or Arkansas is legally required for the issuance, sale and delivery of the Purchased Bonds or the execution, delivery and performance by the Company of the Supplemental Indenture, the Purchased Bonds, 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 or “blue sky” laws of any jurisdiction).
(e) You shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the each Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in consummate the Purchaser's sole discretion, Closing are subject to the accuracy satisfaction or waiver by such Purchaser on or before the Closing Date of the following conditions:
(i) No Material Adverse Effect shall have occurred since the date hereof;
(ii) The representations and warranties of each of the Company contained in this Agreement shall be true and BJI contained herein correct in all material respects as of the date hereof and as of the Expiration Date, Closing Date with the Redemption Date same force and the Closing Date, effect as if made on and as of the Expiration DateClosing Date (other than those qualified by materiality, Redemption Date 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 Company, certifying as to the matters set forth in Section 8(a)(i), (ii) and (iii);
(v) As of the Closing Date, respectively, to the accuracy none of the statements of following events shall have occurred and be continuing: (A) trading in the officers of each of Common Stock shall have been suspended by 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:
Commission or The Nasdaq Global Select Market; or (aB) The Registration Statement a banking moratorium shall have been declared effective not later than 5:00 P.M., either by U.S. federal or New York City timeState authorities (collectively, on the date hereof or such later time as the Purchaser and the a "Market Adverse Effect");
(vi) The Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall 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 request the requirements of the Commission Nasdaq Stock Market, Inc., for additional information (to be included in the Registration Statement or listing of the Prospectus or otherwise).Shares on The Nasdaq Global Select Market; and
(bvii) On each Each of the effective date 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 of the Registration Statement and the Closing Date, the Purchaser shall have received an opinion, dated such respective date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, to the effect thatfollowing conditions:
(i) each of the Company The Registration Rights Agreement shall be in full force and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusettseffect;
(ii) each Each of the Institutional Purchasers shall have received on and as of the Closing Date written evidence reasonably satisfactory to it of the good standing of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and ▇▇▇▇▇▇▇▇ Islands, in writing or any standard form of telecommunication from the Prospectus, and each appropriate governmental authorities of 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 itsuch jurisdiction;
(iii) each of the Company and BJI has an authorized capitalization as set forth in the Prospectus; the Conversion Shares, including the Shares, The Specified Amendments shall have been duly authorized executed and reserved for issuance delivered by all necessary corporate action of the Company upon either conversion of the Securities or issuance to the Purchaser hereunder; the Conversion Sharesparties thereto and shall be in full force and effect, 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, copies thereof shall have been duly authorized for listing, subject delivered to official notice of issuance, on the NYSE (provided that this opinion need not be rendered on the effective date of the Registration Statement)each Institutional Purchaser; to the knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;and
(iv) the statements set forth under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" The Letter Agreement shall have been executed and "Description of Waban Capital Stock" delivered by all parties thereto and shall be in the Prospectus, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; full force and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectuseffect, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred copy thereof shall have been delivered to therein, are correct in all material respects;each Institutional Purchaser.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of ----------------------------------------- the each Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 Securities is subject to the following additional conditionsconditions unless waived in writing by the relevant Purchaser:
(a) The Registration Statement 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 be true and correct in all material respects 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 in all material respects as of such earlier date. The Company shall have been declared effective not later than 5:00 P.M., New York City time, performed in all material respects all obligations and conditions herein required to be performed or observed by it on the date hereof or such later time as the Purchaser and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, prior 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each None of the effective date issuance and sale of the Registration Statement 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, the other Basic Documents or the Disclosure Documents.
(c) The 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 (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 and signed by the chief executive officer and the chief financial officer of the Company, to the effect of paragraphs 5(a), (b), (c) and (d).
(f) The Company shall have delivered a Certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying the resolutions adopted by the Board of Directors of the Company approving the transactions contemplated by this Agreement and the other Basic Documents and the issuance of the Securities, certifying the current versions of the Certificate of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of persons signing the Basic Documents and related documents on behalf of the Company.
(g) On or before the Closing Date, the Purchaser Purchasers shall have received the Registration Rights Agreement executed by the Company and such agreement shall be in full force and effect at all times from and after the Closing Date, subject to the Enforceability Exceptions.
(h) The Purchasers and Placement Agent shall have received an opinion, dated such respective date, opinion of ▇▇▇▇ and ▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company and BJI, to the effect that:Company, in the form attached hereto as Exhibit E.
(i) each No stop order or suspension of trading shall have been imposed by Nasdaq, the Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and is duly qualified Commission or any other governmental regulatory body with respect to transact business as a foreign corporation and is in good standing under the laws of the Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described public trading in the Registration Statement and the Prospectus, and each of 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the statements set forth under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Common Stock" and "Description of Waban Capital Stock" in the Prospectus, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;.
Appears in 1 contract
Sources: Subscription Agreement (Odetics Inc)
Conditions of the Purchaser’s Obligations. The obligations hereunder of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in not become effective until the Purchaser's sole discretion, to the accuracy of the representations and warranties of date on which each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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:conditions is satisfied (or waived in accordance with Section 7.02):
(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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise).
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser shall have received an opinionfrom the Company a counterpart of this Agreement signed on behalf of the Company;
(b) the Company shall have delivered (x) the certificate or certificates representing the Shares and (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 Transaction Documents;
(e) the Purchaser shall have received a satisfactory legal opinion (addressed to the Purchaser and dated such respective date, the Closing Date) of Stroock & Stroock & ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJICompany, reasonably satisfactory to the effect that: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 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 be obtained or made in connection with (i) the execution, delivery or performance of this Agreement and 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 as conducted on the date hereof shall have been duly obtained or made;
(h) the Company shall have performed and complied with all agreements and conditions herein required to be performed or complied with by 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 compliance;
(i) each the representations and warranties of the Company and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of 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 shall 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct true in all material respects; and the statements set forth under Purchaser shall have received from the headings "The Distribution--Federal Income Tax Aspects Financial Officer a certificate, dated as of the Distribution" Closing Date, with the same effect as though made on and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included in the Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal mattersClosing Date, documents or proceedings referred to therein, stating that the representations and warranties of the Company under this Agreement are correct true in all material respects;; and
(j) all corporate and other proceedings and actions taken in connection with the transactions contemplated hereby and all certificates, opinions, agreements, instruments and documents mentioned herein or incident to any such transaction shall be satisfactory in form and substance to the Purchaser and its counsel.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ribozyme Pharmaceuticals Inc)
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser hereunder are subject to surrender for conversion Securities and to purchase and pay for any Shares shall be subjectthe accuracy, in the Purchaser's sole discretionall material respects, to the accuracy of the representations when made and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and on the Closing Date, as if made on and as of the Expiration Daterepresentations, Redemption Date warranties and the Closing Date, respectively, to the accuracy of the statements of the officers of each agreements of the Company and BJI made pursuant to the provisions hereofcontained herein, to the performance by the Company of its obligations hereunder, and to each of the Company and BJI of its covenants and agreements hereunder and to the following additional conditions:
(a) The Registration Statement representations and warranties made by the Company in Section 2 hereof shall have been declared effective not later than 5:00 P.M.true and correct when made, New York City time, and shall be true and correct on the date hereof Closing Date as if made on the Closing Date.
(b) Except for any notices required or such later time as permitted to be filed after the Closing Date with certain federal and state securities commissions, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Notes.
(c) At the Closing Date, the sale and issuance by the Company, and the purchase by the Purchaser, of the Notes shall be legally permitted by all laws and regulations to which the Purchaser or the Company are subject.
(d) All corporate and other proceedings in connection with the transactions contemplated at the Closing Date and all documents and instruments incident to such transactions shall be reasonably satisfactory in substance and form to the Purchaser.
(e) 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 by the Secretary of State of each such company's state of incorporation;
(ii) An opinion of counsel to the Company, in form and substance reasonably satisfactory to the Purchaser;
(iii) A certificate of the Secretary of the Company, dated the Closing Date, certifying that (1) attached thereto are true and correct copies of the organizational documents of the Company, and that such organizational documents are in full force and effect and have not been amended, supplemented, revoked or repealed since the date of such certification; (2) attached thereto is a true and correct copy of resolutions duly adopted by the Board of Directors of the Company authorizing the execution, delivery, and performance by the Company of this Agreement and the Company may agree upon; if required, other Transaction Documents and the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no stop order suspending the effectiveness consummation of the Registration Statement or any post-effective amendment thereto transactions contemplated hereby 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 have been issued thereby; and (3) there are no proceedings for the dissolution or liquidation of the Company that purpose shall have been instituted or threatened commenced or, to the knowledge of the Company, BJI or been threatened;
(iv) A certificate of the PurchaserSecretary of the Company, shall be contemplated by dated the Commission; Closing Date, certifying the incumbency, signatures and each authority of the officers of the Company authorized to execute and deliver this Agreement and the Notes on behalf of the Company and BJI shall have perform the Company's obligations thereunder on behalf of the Company;
(v) A certificate of an officer of the Company, 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 request 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 Material 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 Commission 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 additional information (to be included dividends declared in the Registration Statement or ordinary course of business and consistent with past practice; and (D) he has reviewed the Prospectus or otherwise).
Private Placement Memorandum and, in his opinion (bA) On each the Private Placement Memorandum, as of the effective its date of the Registration Statement 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.
(g) Each of the Transaction Documents, other than this Agreement, shall be in form and substance reasonably satisfactory to the Purchaser and shall have received an opinion, dated such respective date, of ▇▇▇▇ been duly executed and ▇▇▇▇ LLP, counsel for delivered by the Company and BJIthe other parties thereto, to and the effect that:Notes shall have been duly executed and delivered by the Company.
(h) The sale of the Notes shall not be enjoined (temporarily or permanently) on the Closing Date.
(i) each of The Company shall not have sustained since the Company and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of 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 latest audited financial statements incorporated by reference in the knowledge of such counselPrivate Placement Memorandum (A) any material loss or interference with its business from fire, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive explosion, flood or other rights to subscribe for calamity, whether or not covered by insurance, or from any of the Conversion Shareslabor dispute or court or governmental action, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the statements set forth under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" and "Description of Waban Capital Stock" order or decree, otherwise than as described or contemplated in the ProspectusPrivate Placement Memorandum, insofar as or (B) since such statements purport to summarize certain provisions of date there shall not have been any change in the capital stock stock, short-term debt or long-term debt of the Company or BJIany change, are correct or any development involving a prospective change, in all 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 respects; and adverse as to make it impracticable or inadvisable to proceed with the statements delivery of the Securities being delivered on the Closing Date on the terms and in the manner contemplated in the Private Placement Memorandum and this Agreement. In addition, the Company shall have furnished to the Purchaser such further information, certificates and documents as the Purchaser may reasonably request to evidence compliance with the conditions set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;this Section.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, hereunder are subject to the accuracy of the representations and warranties of each of the Operating Partnership and the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 hereofincluded, to the performance by each of the Operating Partnership and the Company and BJI of its covenants and agreements hereunder their respective obligations hereunder, and to the following additional further conditions:
(a) The Registration Statement shall have been declared effective not later than 5:00 P.M.At each Closing Date, New York City time, on the date hereof or such later time as the Purchaser and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b(i) 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 have been issued and no proceedings for that purpose shall have been instituted or threatened be pending or, to the knowledge of the Operating Partnership or the Company, BJI 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, (ii) the Purchaser, representations and warranties set forth in Section 1 hereof shall be contemplated by the Commissionaccurate as though expressly made at and as of such Closing Date; and (iii) each of the Operating Partnership and the Company has complied in all material respects with all agreements and BJI shall have complied with any request of the Commission for additional information (satisfied all conditions on its part to be included in the Registration Statement performed or the Prospectus satisfied at or otherwise)prior to such Closing Date.
(b) On At each of the effective date of the Registration Statement and the Closing Date, the Purchaser shall have received an opiniona certificate executed by the president or chief executive officer and the chief financial officer of the Company, dated as of such respective dateClosing Date, on behalf of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJIas general partner of the Operating Partnership, certifying that the representations and warranties contained in Section 1 are accurate as if made at the applicable Closing Date and that the conditions precedent set forth in this Section 6 have been satisfied.
(c) At each Closing Date, the Purchaser shall have 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 effect that: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 consummation of the transactions contemplated hereby.
(i) each At the initial Closing Date, the Purchaser shall have received the Amendment No. 5, substantially in the form attached hereto as Exhibit A-1, duly executed by the Company, on its own behalf and in its capacity as general partner of the Company Operating Partnership, and BJI has been duly incorporated the Purchaser; and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) at each Closing Date, a certificate or book entry registered in the name of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in Purchaser representing the Registration Statement and the Prospectus, and each number of the Company and BJI has corporate power to enter into this Agreement and to carry out all the terms and provisions hereof and thereof Series D Preferred Units 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 purchased by the Purchaser pursuant to this AgreementSection 3 (the “Series D Preferred Units Certificate”), will be validly issuedduly executed by the Company, fully paid and nonassessable; in its capacity as general partner of the Conversion SharesOperating Partnership.
(e) At each Closing Date, including counsel for the Shares, Purchaser shall have been duly authorized for listing, subject furnished with such documents as it may reasonably require in order to official notice evidence the accuracy of issuance, on the NYSE (provided that this opinion need not be rendered on the effective date of the Registration Statement); to the knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Sharesrepresentations or warranties, including or the Sharesfulfillment of any of the conditions, herein included; and all proceedings taken by the Operating Partnership or the Company that are necessary in connection with the issuance and sale of the Series D Preferred Units shall be satisfactory in form and substance to the knowledge of such counsel no holders of securities of Purchaser and its counsel. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Purchaser by notice to the Operating Partnership and the Company are entitled at any time at or prior to have the final Closing Date, and such securities registered 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 Registration Statement;
(iv) the statements set forth provisions concerning indemnification under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" and "Description of Waban Capital Stock" in the ProspectusSection 7 hereof, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of the Distribution" and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included provisions relating to governing law shall remain in the Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;effect.
Appears in 1 contract
Sources: Series D Cumulative Redeemable Preferred Unit Purchase Agreement (Strategic Storage Trust VI, Inc.)
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and Purchasers to purchase and pay for any Shares the Purchasers' Debt Securities shall be subject, subject in the Purchaser's sole discretion, their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of each of the Company and BJI herein contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 obligations 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no 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 have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or threatened or, by the Commission prior 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser You shall have received an opinion, dated such respective datethe Closing Date, of Anderson, Byrd, Richeson, Flaherty & Henrichs, Kansas counsel for the ▇▇▇pa▇▇, to ▇▇▇ and ▇▇▇ec▇ LLP, counsel for the Company and BJI, to the effect that▇▇▇▇:
(i) each of the The Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation Kansas, with power and is duly qualified to transact business as a foreign corporation authority (corporate and is in good standing under the laws of the Commonwealth of Massachusetts;
(iiother) each of the Company and BJI has corporate power to own or lease 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 as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Prospectus;
(iii) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company;
(iv) 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 breach of any Missouri 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 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 a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or 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 properties or assets of the Company; and
(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, 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 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 Prospectus. In rendering such opinion, Spencer, Scott & Dwyer, P.C. may rely, as to the 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, to the effect that:
(▇) ▇▇▇ 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 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 BJI has corporate power 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 enter into this Agreement materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts have come to carry out all the terms attention of such counsel which lead such counsel to believe that either the Registration Statement or the Prospectus, and provisions hereof and thereof 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 carried out 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 itreference 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) each of The Indenture and the Company and BJI has an authorized capitalization Purchased Debt Securities conform as set forth to legal matters in all material respects to the descriptions thereof contained in the Prospectus; ;
(iv) All approvals of the Conversion SharesState Corporation Commission of the State of Kansas which are required for the issuance, including sale and delivery of the Shares, Purchased Debt Securities have been duly authorized obtained, and reserved for issuance by all necessary corporate action 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 Company upon either conversion securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under 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 hereunderAct, and, in to the case best 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 knowledge of such counsel, no holders of outstanding shares of capital stock stop order suspending the effectiveness of the Company Registration Statement has been issued and no proceedings for that purpose have been instituted or are entitled as such to any preemptive pending or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered contemplated under the Registration Statement;
(iv) the 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 ProspectusAct, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of the Distribution" Registration Statement and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included in the Prospectus, and under each amendment or supplement thereto (except, in each case, as to the heading "Legal Proceedings" in financial statements or other financial or statistical information included therein and the Company's Form 10-K, insofar as such statements constitute a summary T-1 of the legal mattersTrustee, documents as to which such counsel need not express an opinion), as of their respective effective or proceedings referred issue dates, appeared to therein, are correct comply as to form in all material respects;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 each Purchaser to surrender for conversion Securities and to purchase and a Note or pay for any Shares shall be subject, in the Purchaser's sole discretion, to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 Securities is subject to the following additional conditionsconditions unless waived in writing by the Purchaser:
(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 representations and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company, BJI or the Purchaser, shall be contemplated by the Commission; and each warranties of the Company contained in this Agreement shall be true and BJI correct in all 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; the Company shall have complied in all respects with any request of the Commission for additional information (all agreements and satisfied all conditions on its part to be included in performed or satisfied hereunder at or prior to the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each None of the effective date issuance and sale of the Registration Statement 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 certificates, dated the Closing Date and signed by the Chief Executive Officer and the Closing DateChief Financial Officer of the Company, to the effect of paragraphs 5(a) and (b).
(d) Upon Conversion, Purchaser shall have received an opinion, dated such respective date, opinion of ▇▇▇▇ and ▇▇▇▇ LLP, Savage ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP counsel for the Company and BJI, to the effect that:
(i) each Company, with respect to the authorization of the Shares and other customary matters terms, reasonably satisfactory to the Purchaser. Prior to the close of this transaction, Company shall give Purchaser immediate notice of the occurrence of any event or the receipt by Company of any notice or knowledge the effect of which would be to make a representation or warranty of Company herein untrue or misleading if made on or immediately following the occurrence of such event or the receipt of such notice or knowledge. Company hereby agrees to protect, indemnify, and BJI has been duly incorporated defend Purchaser, and is validly existing Purchaser’s nominee, against and to hold Purchaser, and Purchaser’s nominee, harmless from any and all costs, claims, losses, attorneys’ fees, liabilities, and other expenses that Purchaser, or Purchaser’s nominee, may incur or to which Purchaser, or Purchaser’s nominee, may be exposed as a corporation result of Company’s breach of or the falsity of any of Company’s representations or warranties in good standing under the laws of its jurisdiction of incorporation and is duly qualified to transact business this Agreement or as a foreign corporation and is result of Company’s breach of or failure to perform or observe any of Company’s covenants in good standing under the laws of the Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and Purchasers to purchase and pay for any Shares the Purchased Preferred Securities shall be subject, subject in the Purchaser's sole discretion, their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of each of the Company and BJI Issuers herein contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 the Issuers of the Company and BJI of its covenants and agreements their obligations 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no 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 have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or threatened or, by the Commission prior 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser You shall have received an opinion, dated such respective datethe Closing Date, of A▇▇▇▇▇▇▇ and & B▇▇▇▇ , LLP, Kansas counsel for the Company and BJIIssuers, to the effect that:
(i) each of the The Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation Kansas, with power and is duly qualified to transact business as a foreign corporation authority (corporate and is in good standing under the laws of the Commonwealth of Massachusetts;
(iiother) each of the Company and BJI has corporate power to own or lease 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 as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) 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 breach of any Missouri 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 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 a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or 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 properties or assets of the Company;
(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 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 counsel need express no opinion as to the financial statements or other 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 of its officers is a party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the transactions contemplated hereby. In rendering such opinion, S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of A▇▇▇▇▇▇▇ & B▇▇▇, LLP referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) 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 delivery of the 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 (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 C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, counsel for the Issuers, to the effect that:
(i) 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 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 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 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 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, 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 BJI has corporate 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 carry out issue the Purchased Preferred Securities 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 terms and provisions hereof and thereof to be carried out by itpart of the Trust;
(iii) each The Trust Agreement constitutes a valid and binding obligation of the Company and BJI has an authorized capitalization as set forth in the Prospectus; the Conversion SharesEDE Trust Trustees, including the Shares, have been duly authorized and reserved for issuance by all necessary corporate action of enforceable against the Company upon either conversion of and 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, andEDE Trust Trustees, in accordance with its terms except as the case same may be limited by bankruptcy, insolvency, reorganization and other laws relating to or affecting the enforcement of the Shares, paid for creditors’ rights or 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 general principles of issuance, on the NYSE (provided that this opinion need not be rendered on the effective date of the Registration Statement); to the knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statementequity;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;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 of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, hereunder are subject to the accuracy of the representations and warranties of each of the Operating Partnership and the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 hereofincluded, to the performance by each of the Operating Partnership and the Company and BJI of its covenants and agreements hereunder their respective obligations hereunder, and to the following additional further conditions:
(a) The Registration Statement At the Closing Time, the maximum amount of Indebtedness plus the Investment shall be no greater than seventy-four and one half of 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 Purchaser.
(b) 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 declared effective not later than 5:00 P.M.been, New York City time, on since the date hereof or such later time as the Purchaser and the Company may agree upon; if requiredhereof, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission change from that set forth in the manner and within the time period required by Rule 424(bSEC Filings that would reasonably be expected to result in a Material Adverse Effect, (2) 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 have been issued and no proceedings for that purpose shall have been instituted or threatened be pending or, to the knowledge of the Operating Partnership or the Company, BJI 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 Purchaser, representations and warranties set forth in Section 1 hereof shall be contemplated by the Commissionaccurate as though expressly made at and as of such Closing Time; and (4) each of the Operating Partnership and the Company has complied in all material respects with all agreements and BJI shall have complied with any request of the Commission for additional information (satisfied all conditions on its part to be included in the Registration Statement performed or the Prospectus satisfied at or otherwise)prior to such Closing Time.
(bd) On each of the effective date of the Registration Statement and At the Closing DateTime, the Purchaser shall have received an a certificate executed by the president or chief executive officer and the chief financial officer of the Company, dated as of the date hereof, on behalf of the Company and as general partner of the Operating Partnership, certifying that the representations and warranties contained in Section 1 are accurate as if made at the Closing Time and that the conditions precedent set forth in this Section 7 have been satisfied.
(e) At the Closing Time, the Purchaser shall have 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 favorable opinion, dated such respective dateas of the date hereof, of Baker, Donelson, Bearman, ▇▇▇▇▇▇▇▇ and & ▇▇▇▇ LLP▇▇▇▇▇▇, P.C., counsel for the Company Operating Partnership and BJIthe Company, in form and substance satisfactory to the effect thatPurchaser and covering matters such as, without limitation, good standing, due authorization, execution and delivery, enforceability and non-contravention of each of the Transaction 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) each the Amendment and the Second Restated 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 Company Operating Partnership, and BJI has been duly incorporated and is validly existing as a 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 on behalf of the Commonwealth existing limited partners in the Operating Partnership (via power of Massachusettsattorney), and the Purchaser;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described Escrow Agreement, substantially in the Registration Statement form attached hereto as Exhibit B, duly executed by the Operating Partnership, the Company, the Advisor, the Purchaser and the Prospectus, and each of 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 itEscrow Agent;
(iii) the Articles Supplementary, substantially in the form attached hereto as Exhibit C, duly executed by the Company;
(iv) each of the Company and BJI has an authorized capitalization as set forth Subordination Agreements, substantially in the Prospectus; forms attached hereto as Exhibits D-1 and D-2, respectively, duly executed by the Conversion SharesOperating Partnership, including the SharesProperty Manager, have been the Company, the Advisor and the Purchaser, as the case may be;
(v) the Investor Rights Agreement, substantially in the form attached hereto as Exhibit E, duly authorized executed by the Company, the Operating Partnership, the Advisor and reserved for issuance by all necessary corporate action the Purchaser;
(vi) a certificate registered in the name of the Company upon either conversion Purchaser representing the number of the Securities or issuance Preferred Units 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 be purchased by the Purchaser pursuant to this Section 4, substantially in the form attached hereto as Exhibit F (the “Preferred Units Certificate”), duly executed by the Company, in its capacity as general partner of the Operating Partnership; and
(vii) ten certificates registered in the name of the Purchaser, each representing 10% of the number of Series A Preferred Shares issuable to the Purchaser following (a) the occurrence of an Optional Repurchase Event (as such term is defined in the Amendment), (b) the election from time to time of the Purchaser to exchange Preferred Units, in whole or in part, for Series A Preferred Shares pursuant to the terms of the 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 more of such certificates to the Purchaser, pursuant to the terms of the Investor Rights Agreement and the Escrow Agreement, will be validly issuedsuch certificates being substantially in the form attached hereto as Exhibit G (collectively, fully paid the “Series A Preferred Shares Certificates”), in each case duly executed by the Company.
(h) At the Closing Time, the Purchaser shall have received confirmation to its reasonable satisfaction that the Operating Partnership and nonassessable; the Conversion SharesCompany have delivered to the Escrow Agent all documents required pursuant to the Escrow Agreement, including the SharesArticles 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 to become effective upon release from escrow, if applicable.
(i) At or prior to the Closing Time, (i) GCC shall have assigned the Columbia Portfolio Purchase Agreement to the Operating Partnership and certain Subsidiaries and (ii) the acquisition by the Operating Partnership and such Subsidiaries of the Columbia Portfolio shall have been duly authorized for listingconsummated.
(j) The Company or the Operating Partnership shall have sent to the Purchaser, subject to official notice of issuanceor the Purchaser shall have received, on or prior to the NYSE Closing Time, each of the following documents, in form satisfactory to the Purchaser and its counsel, in their reasonable discretion:
(i) appraisals of the Portfolio prepared by an independent appraiser and in accordance with FIRREA standards (provided that this opinion need not be rendered on the effective date of Purchaser will work in good faith to accept existing appraisals in the Registration StatementOperating Partnership’s and the Company’s possession); to the knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;,
(ivii) capital expenditure budget(s), (iii) engineering report(s) (provided that the statements set forth under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" and "Description of Waban Capital Stock" Purchaser will work in good faith to accept existing engineering reports in the Prospectus, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; Operating Partnership’s and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of the Distribution" and "--Conditions; TerminationCompany’s possession)," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included in the Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;
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 to surrender for conversion Securities and Purchasers to purchase and pay for any Shares the Purchased Bonds shall be subject, subject in the Purchaser's sole discretion, their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of each of the Company and BJI herein contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 obligations 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no 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 have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or threatened or, by the Commission prior 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser You shall have received an opinion, dated such respective datethe Closing Date, of A▇▇▇▇▇▇▇ and & B▇▇▇▇ , LLP, Kansas counsel for the Company and BJICompany, to the effect that:
(i) each of the The Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation Kansas, with power and is duly qualified to transact business as a foreign corporation authority (corporate and is in good standing under the laws of the Commonwealth of Massachusetts;
(iiother) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement Statement, the General Use Disclosure Package and the Prospectus, and each ;
(ii) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Bonds have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Bonds 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 Bonds or the execution, delivery and performance by the Company and BJI has corporate power to enter into of the Supplemental Indenture, the Purchased Bonds, any Delayed Delivery Contracts or this Agreement and (it being understood that such counsel need express no opinion as to carry out all any approvals which may be required under the terms and provisions hereof and thereof to be carried out by itsecurities acts or Blue Sky laws of said state);
(iii) each Neither the issuance, sale and delivery of the Purchased Bonds nor the execution, delivery and performance by the Company of this Agreement, , any Delayed Delivery Contracts, the Supplemental Indenture or the Purchased Bonds 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
(iv) 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 S▇▇▇▇▇▇, ▇▇▇▇▇ & 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 de- scribed in the Registration Statement, the General Use Disclosure Package and the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Registration Statement, the General Use Disclosure Package and the Prospectus;
(iii) The Purchased Bonds have been duly authorized, executed, issued and delivered by the Company and BJI has an authorized capitalization as set forth in constitute, and the Prospectus; the Conversion Shares, including the Shares, Contract Bonds have been duly authorized and reserved for issuance by all necessary corporate action of when executed and authenticated in accordance with the Company upon either conversion of the Securities or issuance Indenture and delivered 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, and paid for by the Purchaser purchasers pursuant to this AgreementDelayed Delivery Contracts will constitute, will be validly issued, fully paid valid 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 knowledge of such counsel, no holders of outstanding shares of capital stock legally binding obligations of the Company are entitled to the benefits and security provided by the Indenture, except as such to any preemptive the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights to subscribe for any or the enforcement of the Conversion Sharessecurity provided by the Indenture or by general principles of equity and, including the Shares; and (A) as to the knowledge of such counsel no holders of securities Company’s interest in Unit No. 1 at the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, Aquila, Inc. (as successor to St. J▇▇▇▇▇ Light & Power Company) and the Company are entitled and of any other agreements by the Company relating to have its interest in such securities registered under facility, (B) as to the Registration StatementCompany’s interest in Unit No. 2 at the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Unit 2 and Common Facilities Ownership Agreement, dated as of May 19, 2006, among Kansas City Power & Light Company, Aquila, Inc., the Company, Kansas Electric Power Cooperative, Inc., and Missouri Joint Municipal Electric Utility Commission and of any other agreements by the Company relating to its interest in such facility and (C) as to the Company’s interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility;
(iv) The Indenture has been duly authorized, executed and delivered by the statements set forth Company, has been duly qualified under the headings "Information for Holders Trust Indenture Act and constitutes a valid and legally binding instrument of Convertible Debentures," "Description 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 BJI Capital Stock" creditors’ rights or the enforcement of the security provided by the Indenture or by general principles of equity and "Description (A) as to the Company’s interest in Unit No. 1 at the Iatan Generating Station, except as the same may be limited by the terms of Waban Capital Stock" the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, Aquila, Inc. (as successor to St. J▇▇▇▇▇ Light & Power Company) and the Company and of any other agreements by the Company relating to its interest in such facility, (B) as to the Company’s interest in Unit No. 2 at the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Unit 2 and Common Facilities Ownership Agreement, dated as of May 19, 2006, among Kansas City Power & Light Company, Aquila, Inc., the Company, Kansas Electric Power Cooperative, Inc., and Missouri Joint Municipal Electric Utility Commission and of any other agreements by the Company relating to its interest in such facility and (C) as to the Company’s interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility;
(v) The Indenture constitutes a direct and valid mortgage lien upon substantially all of the properties and assets of the Company specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been taken by adverse possession or may have been disposed of, or released from the lien thereof, in accordance with the terms thereof), subject to no liens, charges or encumbrances prior to the lien of the Indenture except permitted encumbrances as defined in the Indenture; the Indenture will create a similar lien upon all properties and assets acquired by the Company after the date hereof located in counties in which the Indenture has been recorded and required to be subjected to the lien of the Indenture when acquired by the Company, subject to no liens, charges or encumbrances prior to the lien of the Indenture except permitted encumbrances, liens existing or placed on such properties or assets at the time of such acquisition, and also subject to the provisions of Article 12 of the Indenture and to certain possible claims of a trustee in bankruptcy and possible claims and taxes of the federal government; the Indenture (except as otherwise herein stated with respect to the Supplemental Indenture) has been duly recorded as a mortgage of real estate or recorded or filed as a chattel mortgage in each county or recording or filing district in which any of the properties or assets of the Company subject to the lien of the Indenture are situated; upon the Supplemental Indenture being duly filed and recorded as a mortgage of real estate in each county in the States of Arkansas, Kansas and Missouri in which real estate subject to the lien of the Indenture is located and being filed as a chattel mortgage in the office of the Secretary of State of each of the States of Kansas, Missouri and Oklahoma, and upon the filing of an appropriate amendment to a financing statement in the office of the Secretary of State of the State of Arkansas, no further recording or filing and, under present law, no periodic or other re-recording or refiling of the Indenture or any other instrument will be required in order to preserve and protect the lien of the Indenture either as a mortgage on real estate or as a chattel mortgage except that if the Company shall hereafter acquire property in any county in which the Indenture shall not be of record, further recording or filing may be required, depending upon the law of the State in which such county is located;
(vi) All taxes and recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma to be paid with respect to the execution, recording or filing of the Indenture and the issuance of the Purchased Bonds have been paid except such fees as are not payable until the filing for record of the Supplemental Indenture in the offices mentioned in the next preceding paragraph in which it has not been filed on the Closing Date, provision for the payment of which fees has been made by the Company, and upon payment of such fees by the Company no taxes or recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma with respect to the execution, recording or filing of the Indenture or the issuance of the Purchased Bonds will be payable;
(vii) The Company has good and marketable title in fee simple to substantially all real and fixed properties and good and marketable title to substantially all other properties and assets specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been disposed of, or released from the lien thereof, in accordance with the terms thereof), including, without limitation, the properties of the Company referred to in Item 2. Properties in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2007, in each case free and clear of all liens, charges and encumbrances prior to the lien of the Indenture except permitted encumbrances as defined in the Indenture (it being understood that such foregoing opinion may be based (1) on searches of available public records performed within five business days prior to the Closing Date and (2) upon a certificate of the Company); and the descriptions of all such properties and assets contained in the granting clauses of the Indenture are correct and adequate for the purposes of the Indenture;
(viii) The Indenture and the Purchased Bonds 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;
(ix) This Agreement and any Delayed Delivery Contracts have been duly authorized, insofar executed and delivered by the Company;
(x) Neither the issuance, sale and delivery of the Purchased Bonds nor the execution, delivery and performance by the Company of this Agreement, any Delayed Delivery Contract, the Supplemental Indenture or the Purchased Bonds will conflict with, violate or result in breach of any Missouri 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 such statements purport to summarize certain 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 a breach of any of the terms, conditions or provisions of the capital stock Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or BJIof any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, are correct or result in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the Distribution" and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders properties or assets of Convertible Debentures" included in the Company (other than the lien of the Indenture);
(xi) 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 heading "Legal Proceedings" Act which are not described as so required, nor of any contracts or documents of a character required to be described in the Company's Registration Statement or Prospectus pursuant to Item 11 of Form 10S-3 under the Act or to be filed as exhibits to the Registration Statement pursuant to Item 601 of Regulation S-KK under the Act 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 information contained in the General Use Disclosure Package or the Prospectus; and
(xii) Other than disclosed or contemplated by the General Use Disclosure Package and the Prospectus, insofar as such statements constitute there are no actions, suits, claims, investigations or proceedings pending or threatened to which the Company or any of its officers is a summary party or of which any of its properties is subject, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which would reasonably be expected to result in a Material Adverse Effect or prevent consummation of the legal matterstransactions contemplated hereby. In rendering such opinion, documents or proceedings S▇▇▇▇▇▇, ▇▇▇▇▇ & D▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of A▇▇▇▇▇▇▇ & B▇▇▇, LLP referred to thereinin paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon, S▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) 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 correct in all material respects;required for the issuance, sale and delivery of the Purc
Appears in 1 contract
Sources: Purchase Agreement (Empire District Electric Trust Ii)
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and Purchasers to purchase and pay for any Shares the Purchasers' Bonds shall be subject, subject in the Purchaser's sole discretion, their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of each of the Company and BJI herein contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 obligations 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no 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 have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or threatened or, by the Commission prior 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser You shall have received an opinion, dated such respective datethe Closing Date, of ▇▇▇▇ and ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ LLP& ▇▇▇▇▇▇▇▇, counsel for the Company and BJICompany, to the effect that:
(i) each of the The Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation Kansas, with power and is duly qualified to transact business as a foreign corporation authority (corporate and is in good standing under the laws of the Commonwealth of Massachusetts;
(iiother) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement Prospectus;
(ii) All approvals of the State Corporation Commission of the State of Kansas which are required for the issuance, sale and delivery of the Purchased Bonds have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Bonds 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 Bonds or the execution, delivery and performance by the Company of the Supplemental Indenture, the Purchased Bonds, 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
(iii) 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., 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 ProspectusCompany is duly qualified to do business as a foreign corporation in good standing in the States of Arkansas, Missouri and each Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the Company valid and BJI has corporate power subsisting franchises which are necessary to enter into this Agreement and authorize it to carry out all on the terms and provisions hereof and thereof to be carried out by itutility businesses in which it is engaged as described in the Prospectus;
(iii) each of The Purchasers' Bonds have been duly authorized, executed, authenticated, issued and delivered by the Company and BJI has an authorized capitalization as set forth in constitute, and the Prospectus; the Conversion Shares, including the Shares, Contract Bonds have been duly authorized and reserved for issuance by all necessary corporate action of when executed and authenticated in accordance with the Company upon either conversion of the Securities or issuance Indenture and delivered 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, and paid for by the Purchaser purchasers pursuant to this AgreementDelayed Delivery Contracts will constitute, will be validly issued, fully paid valid 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 knowledge of such counsel, no holders of outstanding shares of capital stock legally binding obligations of the Company are entitled to the benefits and security provided by the Indenture except as such to any preemptive the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights to subscribe for any or the enforcement of the Conversion Sharessecurity provided by the Indenture or by general principles of equity and, including the Shares; and (A) as to the knowledge of such counsel no holders of securities Company's interest in the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, St. ▇▇▇▇▇▇ Light & Power Company are entitled and the Company and of any other agreements by the Company relating to have its interest in such securities registered under station and (B) as to the Registration StatementCompany's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility;
(iv) The Indenture has been duly authorized, executed and delivered by the statements set forth Company, has been duly qualified under the headings "Information 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 the enforcement of the security provided by the Indenture or by general principles of equity and, (A) as to the Company's interest in the Iatan Generating Station, except as the same may be limited by the terms of the Iatan Station Ownership Agreement, dated July 31, 1978, among Kansas City Power & Light Company, St. ▇▇▇▇▇▇ Light & Power Company and the Company and of any other agreements by the Company relating to its interest in such station and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for Holders the Construction, Ownership and Operation of Convertible Debentures," "Description State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of BJI Capital Stock" any other agreements by the Company relating to its interest in such facility;
(v) The Indenture constitutes a direct and "Description valid mortgage lien upon substantially all of Waban Capital Stock" the properties and assets of the Company specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been disposed of, or released from the lien thereof, in accordance with the terms thereof) and will create a similar lien upon all properties and assets acquired by the Company after the date hereof located in counties in which the Indenture has been recorded and required to be subjected to the lien of the Indenture when acquired by the Company; the Indenture (except as otherwise herein stated with respect to the Supplemental Indenture) has been duly recorded as a mortgage of real estate or recorded or filed as a chattel mortgage in each county or recording or filing district in which any of the properties or assets of the Company subject to the lien of the Indenture are situated; the Supplemental Indenture has been filed for record as a mortgage of real estate in Cherokee County, Kansas and in ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇ Counties, Missouri (and specifying any other recording or filing at the Closing Date) and, upon the Supplemental Indenture being duly filed and recorded as a mortgage of real estate in all other counties in the States of Arkansas, Kansas and Missouri in which real estate subject to the lien of the Indenture is located and being filed as a chattel mortgage in the office of the Secretary of State of each of the States of Kansas, Missouri and Oklahoma, and upon the filing of an appropriate amendment to a financing statement in the office of the Secretary of State of the State of Arkansas, no further recording or filing and, under present law, no periodic or other re-recording or refiling of the Indenture or any other instrument will be required in order to preserve and protect the lien of the Indenture either as a mortgage on real estate or as a chattel mortgage except that if the Company shall hereafter acquire property in any county in which the Indenture shall not be of record, further recording or filing may be required, depending upon the law of the State in which such county is located;
(vi) All taxes and recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma to be paid with respect to the execution, recording or filing of the Indenture and the issuance of the Purchased Bonds have been paid except such fees as are not payable until the filing for record of the Supplemental Indenture in the offices mentioned in the next preceding paragraph in which it has not been filed on the Closing Date, provision for the payment of which fees has been made by the Company, and upon payment of such fees by the Company no taxes or recording fees required by the laws of the States of Arkansas, Kansas, Missouri and Oklahoma with respect to the execution, recording or filing of the Indenture or the issuance of the Purchased Bonds will be payable;
(vii) The Company has good and marketable title in fee simple to substantially all real and fixed properties and good and marketable title to substantially all other properties and assets specifically or generally described or referred to in the Indenture as being subject to the lien thereof (except such property as may have been disposed of, or released from the lien thereof, in accordance with the terms thereof), in each case free and clear of all liens, charges and encumbrances prior to the lien of the Indenture except permitted encumbrances as defined in the Indenture (it being understood that such foregoing opinion may be based (1) on searches of available public records performed within five business days prior to the Closing Date and (2) upon a certificate of the Company); and the descriptions of all such properties and assets contained in the granting clauses of the Indenture are correct and adequate for the purposes of the Indenture;
(viii) The Indenture and the Purchased Bonds conform as to legal matters in all material respects to the descriptions thereof contained in the Prospectus;
(ix) This Agreement and any Delayed Delivery Contracts have been duly authorized, insofar executed and delivered by the Company;
(x) Neither the issuance, sale and delivery of the Purchased Bonds nor the execution, delivery and performance by the Company of this Agreement, any Delayed Delivery Contract, the Supplemental Indenture or the Purchased Bonds will conflict with, violate or result in breach of any Missouri 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 such statements purport to summarize certain 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 a breach of any of the terms, conditions or provisions of the capital stock Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or BJIof any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or constitute a default thereunder, are correct or result in all material respectsthe creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Company (other than the lien of the Indenture); and and
(xi) Relying as to materiality to a large extent upon the statements set forth under the headings "The Distribution--Federal Income Tax Aspects and opinions of representatives of 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 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, 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 heading "Legal Proceedings" 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 Prospectus. In rendering such opinion, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) You shall have received an opinion, dated the Closing Date, of Brydon, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation, 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 Bonds have been obtained; any conditions in such approvals required to be satisfied prior to the issuance of the Purchased Bonds 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 States of Missouri, Oklahoma or Arkansas is legally required for the issuance, sale and delivery of the Purchased Bonds or the execution, de- livery and performance by the Company of the Supplemental Indenture, the Purchased Bonds, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, to the effect that:
(i) The Purchasers' Bonds have been duly authorized, executed, authenticated, issued and delivered by the Company and constitute, and the Contract Bonds 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 the enforcement of the security provided by the Indenture or by general principles of equity and, (A) as to the Company's Form 10-Kinterest in the Iatan Generating Station, insofar except as such statements constitute a summary the same may be limited by the terms of the legal mattersIatan Station Ownership Agreement, documents dated July 31, 1978, among Kansas City Power & Light Company, St. ▇▇▇▇▇▇ Light & Power Company and the Company and of any other agreements by the Company relating to its interest in such station and (B) as to the Company's interest in the State Line Combined Cycle Generating Facility, except as the same may be limited by the terms of the Agreement for the Construction, Ownership and Operation of State Line Combined Cycle Generating Facility, dated July 26, 1999, as amended, among the Company, as an owner, Westar Generating, Inc., as an owner and the Company, as agent and of any other agreements by the Company relating to its interest in such facility;
(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 proceedings referred other laws relating to thereinor affecting the enforcement of creditors' rights or the enforcement of the security provided by the Indenture or by general principles of equity and, are correct (A) as to the Company's interest in all material respects;the Iatan Generating Sta
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall the Series 2023 Bonds will be subject, in the Purchaser's sole discretion, subject to the accuracy of the representations and warranties of each on the part of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 hereofIssuer herein, to the performance by each of the Issuer and the Company and BJI of its covenants and agreements their respective obligations hereunder and to the following additional conditionsconditions 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 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) 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no stop order suspending the effectiveness each of the Registration Statement or any post-effective amendment thereto representations 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge warranties of the CompanyIssuer set forth in Section 1 hereof is true, BJI or accurate and complete in all material respects as of the PurchaserClosing Time, shall be contemplated by the Commission; and each of the Company and BJI shall have agreements of the Issuer set forth in this Agreement to be complied with any request at or prior to the Closing Time has been complied with as of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise).such time; and
(b) On each no litigation is pending, or to such official’s knowledge threatened, to restrain or enjoin the issuance, execution, sale or delivery of the effective Series 2023 Bonds or contesting the issuance or the validity of the Series 2023 Bonds, the Ordinance, the 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 the Registration Statement and the Closing Date, the Purchaser shall have received an opinion, dated such respective date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, closing to the effect that:
(ia) each of the Company representations and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each warranties of the Company set forth in Section 2 hereof is true, accurate and BJI has corporate power to own or lease its properties and conduct its business complete in all material respects as described in of the Registration Statement and the ProspectusClosing Time, and each of the agreements of the Company and BJI has corporate power to enter into set forth in this Agreement and to carry out all the terms and provisions hereof and thereof to be carried out 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 it;Federal or Kansas authorities; or
(iii) each 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 Company and BJI has an authorized capitalization Series 2023 Bonds as set forth in the Prospectuscontemplated hereby; 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;or
(iv) the statements set forth under the headings "Information for Holders United States shall not be or become engaged in any major outbreak of Convertible Debentures," "Description of BJI Capital Stock" and "Description of Waban Capital Stock" armed hostilities which result in the Prospectus, insofar as such statements purport declaration of national emergency. If the conditions to summarize certain provisions the obligations of the capital stock Purchaser contained in this Agreement are not satisfied or if the obligations of the Company or BJIPurchaser shall be terminated for any reason permitted by this Agreement, are correct in all material respects; this Agreement shall terminate and neither the statements set forth under Purchaser nor the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;Issuer shall have any further obligations hereunder.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and Purchasers to purchase and pay for any Shares the Purchasers' Preferred Securities shall be subject, subject in the Purchaser's sole discretion, their discretion to the accuracy of and compliance in all material respects with the representations and the warranties of each of the Company and BJI Issuers herein contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 the Issuers of the Company and BJI of its covenants and agreements their obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have been declared become 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no under the Act or proceedings for that purpose shall have been instituted therefor initiated or threatened or, by the Commission prior 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser You shall have received an opinion, dated such respective datethe Closing Date, of Anderson, Byrd, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and & ▇▇▇▇ LLP▇▇▇▇▇, Kansas counsel for the Company and BJIIssuers, to the effect that:
(i) each of the The Company and BJI has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction the State of incorporation Kansas, with power and is duly qualified to transact business as a foreign corporation authority (corporate and is in good standing under the laws of the Commonwealth of Massachusetts;
(iiother) each of the Company and BJI has corporate power to own or lease 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 as a foreign corporation in good standing in the States of Arkansas, Missouri and Oklahoma, which are the only jurisdictions (other than Kansas) in which it owns or leases substantial properties or in which the conduct of its business requires such qualification;
(ii) The Company holds all the valid and subsisting franchises which are necessary to authorize it to carry on the utility businesses in which it is engaged as described in the Prospectus;
(iii) This Agreement has been duly authorized, executed and delivered by the Company;
(iv) Neither the issuance, sale, delivery and performance 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 breach of any Missouri 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 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 a breach of any of the terms, conditions or provisions of the Restated Articles of Incorporation, as amended, or By-Laws, as amended, of the Company or of any agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or 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 properties or assets of the Company; and
(v) Relying as to materiality to a large extent upon the statements and opinions of representatives of the Issuers, 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, 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 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 Prospectus. In rendering such opinion, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, P.C. may rely, as to the incorporation of the Company and all matters governed by Kansas law, upon the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ referred to in paragraph (b) above and, as to all matters covered thereby, upon the opinion of Brydon, ▇▇▇▇▇▇▇▇▇▇ & England, Professional Corporation referred to in paragraph (d) below.
(d) You 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, 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, delivery and performance of the 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 (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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Issuers, 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 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 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;
(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 BJI 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 corporate power 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 enter into this 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 carry out all or affecting the terms and provisions hereof and thereof to be carried out enforcement of creditors' rights or by itgeneral principles of equity;
(iii) each of The Indenture, the Company Trust Agreement, the Guarantee and BJI has an authorized capitalization the Corresponding Debt Securities conform as set forth to legal matters in all material respects to the descriptions thereof contained in the Prospectus; ;
(iv) All approvals of the Conversion SharesState Corporation Commission of the State of Kansas which are required for the issuance, including sale and delivery of the SharesPurchased Preferred Securities, the Corresponding Debt Securities, the Common Securities, and the Guarantee have been duly authorized obtained, and reserved for issuance by all necessary corporate action 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 Company upon either conversion securities acts or Blue Sky laws of any jurisdiction);
(v) The Registration Statement has become effective under 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 hereunderAct, and, in to the case best 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 knowledge of such counsel, no holders of outstanding shares of capital stock stop order suspending the effectiveness of the Company Registration Statement has been issued and no proceedings for that purpose have been instituted or are entitled as such to any preemptive pending or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered contemplated under the Registration Statement;
(iv) the 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 ProspectusAct, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of the Distribution" Registration Statement and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included in the Prospectus, and under each amendment or supplement thereto (except, in each case, as to the heading "Legal Proceedings" in financial statements or other financial or statistical information included therein and the Company's Form 10-K, insofar as such statements constitute a summary Forms T-1 of the legal mattersTrustees, documents as to which such counsel need not express an opinion), as of their respective effective or proceedings referred issue dates, appeared to therein, are correct comply as to form in all material respects;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 to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, hereunder are subject to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 hereofincluded, to the performance by each of the Company and BJI of its covenants and agreements hereunder obligations hereunder, and to the following additional further conditions:
(a) The Registration Statement shall have been declared effective not later than 5:00 P.M.At the Closing Date, New York City time, on the date hereof or such later time as the Purchaser and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b(i) 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 have been issued and no proceedings for that purpose shall have been instituted or threatened be pending or, to the knowledge of the Company, BJI 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 Purchaser, representations and warranties set forth in Section 1 hereof shall be contemplated by the Commissionaccurate as though expressly made at and as of such Closing Date; and each of (iii) the Company has complied in all material respects with all agreements and BJI shall have complied with any request of the Commission for additional information (satisfied all conditions on its part to be included in the Registration Statement performed or the Prospectus satisfied at or otherwise)prior to such Closing Date.
(b) On each of the effective date of the Registration Statement and At the Closing Date, the Purchaser shall have received an opinion(i) the Amendment and the Operating Agreement, dated such respective datesubstantially in the forms attached hereto as Exhibits A-1 and A-2, of ▇▇▇▇ and ▇▇▇▇ LLPrespectively, counsel for duly executed by the Company and BJI, to the effect that:
(i) each on behalf of the Company existing members (via power of attorney), and BJI has been duly incorporated the Purchaser; and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each a certificate or book entry registered in the name of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in Purchaser representing the Registration Statement and the Prospectus, and each number of the Company and BJI has corporate power to enter into this Agreement and to carry out all the terms and provisions hereof and thereof Preferred Units 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 purchased by the Purchaser pursuant to this AgreementSection 3 (the “Preferred Units Certificate”), will be validly issuedduly executed by the Company.
(c) At the Closing Date, fully paid and nonassessable; counsel for the Conversion Shares, including the Shares, Purchaser shall have been duly authorized for listing, subject furnished with such documents as it may reasonably require in order to official notice evidence the accuracy of issuance, on the NYSE (provided that this opinion need not be rendered on the effective date of the Registration Statement); to the knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Sharesrepresentations or warranties, including or the Sharesfulfillment of any of the conditions, herein included; and all proceedings taken by the Company that are necessary in connection with the issuance and sale of the Preferred Units shall be satisfactory in form and substance to the knowledge of such counsel no holders of securities of Purchaser and its counsel. If any condition specified in this Section 6 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 are entitled at any time at or prior to have the Closing Date, and such securities registered 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 Registration Statement;
(iv) the statements set forth provisions concerning indemnification under the headings "Information for Holders of Convertible Debentures," "Description of BJI Capital Stock" and "Description of Waban Capital Stock" in the ProspectusSection 7 hereof, insofar as such statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of the Distribution" and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included provisions relating to governing law shall remain in the Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;effect.
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 Each Purchaser's obligation under Section 3 hereof is subject to the fulfillment on or before the Closing of ----------------------------------------- each of the Purchaser following conditions unless waived by each of the Purchasers:
(a) each of the Purchasers shall have received the reasonable opinion of Akerman, Senterfitt & Eid▇▇▇, ▇.A., counsel to surrender for conversion Securities and to purchase and pay for any Shares shall be subjectthe Company, dated the Closing Date, substantially in the Purchaser's sole discretion, form and substantially to the accuracy effect set forth in Exhibit C attached hereto;
(b) the Company shall have executed and delivered the Registration Rights Agreement, dated the Closing Date, substantially in the form of Exhibit B attached hereto;
(c) the representations and warranties of each of the Company contained in Section 2 shall be true and BJI contained herein as of the date hereof correct on and as of the Expiration Date, Closing Date with the Redemption Date and the Closing Date, same effect as if though made on and as of the Expiration Closing Date;
(d) the Company shall have performed all covenants, Redemption Date 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, respectively, to ;
(e) the accuracy of the statements of the officers of each Chief Executive Officer of the Company and BJI made pursuant shall have delivered to the provisions hereofPurchasers 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 transactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to the performance by each 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 the Company and BJI of its covenants and agreements hereunder and to the following additional conditions:such documents as they may reasonably request;
(ag) The Registration Statement the Purchasers, severally, shall have been declared effective not later than 5:00 P.M., New York City time, on received the date hereof or such later time as notes and warrants representing the Purchaser Term B Notes and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission Term B Warrants in the manner and within the time period required by Rule 424(b) under the Actamounts set forth opposite their names on Schedule 1; 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 have been issued and no proceedings for that purpose shall 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise).and
(bh) On each of the effective date of the Registration Statement and on the Closing Date, the Purchaser Company shall have received an opinion, dated such respective date, paid all reasonable out-of-pocket expenses (including the fees and disbursements of Dew▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP, P as special counsel for the Company and BJI, to the effect that:
(iPurchasers) each incurred by the Purchasers in connection with the review and negotiation of the Company and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;transactions contemplated hereby.
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 to surrender for conversion Securities and to purchase and pay for any Shares shall the Series 2020 Bonds will be subject, in the Purchaser's sole discretion, subject to the accuracy of the representations and warranties of each on the part of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 hereofIssuer herein, to the performance by each the Issuer and the Purchaser of the Company and BJI of its covenants and agreements their respective obligations hereunder and to the following additional conditionsconditions 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 entities constituting the Company (acting as counsel to the Company, as the tenant under the Lease and to 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) 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no stop order suspending the effectiveness each of the Registration Statement or any post-effective amendment thereto representations 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge warranties of the CompanyIssuer set forth in Section 1 hereof is true, BJI or accurate and complete in all material respects as of the PurchaserClosing Time, shall be contemplated by the Commission; and each of the Company and BJI shall have agreements of the Issuer set forth in this Agreement to be complied with any request at or prior to the Closing Time has been complied with as of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise).such time; and
(b) On each no litigation is pending, or to such official’s knowledge threatened, to restrain or enjoin the issuance, execution, sale or delivery of the effective Series 2020 Bonds or contesting the issuance or the validity of the Series 2020 Bonds, the Ordinance, the 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 the Registration Statement and the Closing Date, the Purchaser shall have received an opinion, dated such respective date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, closing to the effect that:
(ia) each of the Company representations and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each warranties of the Company set forth in Section 2 hereof is true, accurate and BJI has corporate power to own or lease its properties and conduct its business complete in all material respects as described in of the Registration Statement and the ProspectusClosing Time, and each of 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 agreements of the Company and BJI has an authorized capitalization as set forth in this Agreement to be complied with at or prior to the ProspectusClosing Time has been complied with as of such time; and
(b) insofar as the Conversion Sharessigners of such certificate or certificates are aware, including after reasonable investigation, since the Sharesdate of this Agreement, have there has been duly authorized and reserved for issuance by all necessary corporate action no material adverse change in the property or financial position of the Company upon either conversion or results of operation of the Securities Company; and
(c) no litigation is pending, 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 knowledge of such counselthe Company threatened, no holders to restrain or enjoin the issuance, execution, sale or delivery of outstanding shares the Series 2020 Bonds or in any way contesting or affecting any authority for issuance or the validity of capital stock 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 entitled as such to any preemptive not satisfied or other rights to subscribe if the obligations of the Purchaser shall be terminated for any of reason permitted by this Agreement, this Agreement shall terminate and neither the Conversion Shares, including Purchaser nor the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to Issuer shall have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;any further obligations hereunder.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of the Purchaser’s Obligations. The obligations hereunder of ----------------------------------------- the Purchaser shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 7.02):
(a) the Purchaser shall have received from the Company a counterpart of this Agreement signed on behalf of the Company;
(b) the Company shall have delivered (x) the certificate or certificates representing the Shares and (y) the Warrant Certificate;
(c) the Company shall have filed the Registration Statement with the SEC;
(d) the Company shall have paid to surrender the Purchaser $7,500 to cover legal expenses in connection with due diligence and the preparation, negotiation and review of the 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 conversion Securities and the Company, reasonably satisf▇▇▇▇▇y to purchase and pay for any Shares shall be subjectthe 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 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 be obtained or made in connection with (i) the execution, delivery or performance of this Agreement and 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 as conducted on the date hereof shall have been duly obtained or made;
(h) the Company shall have performed and complied with all agreements and conditions herein required to be performed or complied with by 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's sole discretion, to the accuracy provide reasonable evidence of such compliance;
(i) the representations and warranties of each of the Company and BJI contained herein under this Agreement shall be true in all material respects; the Purchaser shall have received from the Financial Officer a certificate, dated as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, with the same effect as if though made on and as of the Expiration Date, Redemption Date and the Closing Date, respectively, to stating that the accuracy of the statements of the officers of each representations and warranties 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall 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 request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise).
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser shall have received an opinion, dated such respective date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, to the effect that:
(i) each of the Company and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct true in all material respects; and
(j) all corporate and other proceedings and actions taken in connection with the statements set forth under transactions contemplated hereby and all certificates, opinions, agreements, instruments and documents mentioned herein or incident to any such transaction shall be satisfactory in form and substance to the headings "The Distribution--Federal Income Tax Aspects of the Distribution" Purchaser and "--Conditions; Termination," "BJI Business and Properties--Legal Proceedings," "HomeBase Business and Properties--Legal Proceedings," "Information for Holders of Convertible Debentures" included in the Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;its counsel.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ribozyme Pharmaceuticals Inc)
Conditions of the Purchaser’s Obligations. The obligations obligation of ----------------------------------------- the each Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 Securities is subject to the following additional conditionsconditions unless waived in writing by the Purchaser:
(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 representations and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company, BJI or the Purchaser, shall be contemplated by the Commission; and each warranties of the Company contained in this Agreement shall be true and BJI correct 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; the Company shall have complied in all material respects with any request of the Commission for additional information (all agreements and satisfied all conditions on its part to be included in performed or satisfied hereunder at or prior to the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each None of the effective date issuance and sale of the Registration Statement 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 Purchasers shall have received certificates, dated the Closing Date and signed by the Chief Executive Officer and the Closing DateChief Financial Officer of the Company, to the Purchaser effect of paragraphs 5(a) and (b).
(d) The Purchasers shall have received an opinionopinion of Christopher K. Brenner, dated such respective date, of P.C. with ▇▇▇▇▇▇▇ and ▇▇ ▇▇▇ ▇▇▇▇ LLP, counsel for the Company and BJI, to the effect that:
(i) each ▇▇▇▇zation of the Company and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the ProspectusSeries A Stock, and each of 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 Warrants 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, Warrant Shares and other customary matters 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled form attached hereto as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;Exhibit C.
(ive) the The Purchasers shall have received pro forma financial 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 statements purport relating to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary prospective acquisitions and biographical information regarding the Company's officers and directors.
(f) The Company shall have received obtained and delivered to Purchasers approval by Crestview Captial ___ of the legal matters, documents or proceedings referred to therein, are correct in all material respects;terms of this transaction.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of ----------------------------------------- the each Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 Securities is subject to the following additional conditionsconditions unless waived in writing by each Purchaser:
(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 representations and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company, BJI or the Purchaser, shall be contemplated by the Commission; and each warranties of the Company contained in this Agreement shall be true and BJI correct 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; the Company shall have complied in all material respects with any request of the Commission for additional information (all agreements and satisfied all conditions on its part to be included in performed or satisfied hereunder at or prior to the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each None of the effective date issuance and sale of the Registration Statement 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 Knowledge of the Company, threatened against the Company or 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 Purchasers shall have received certificates, dated the Closing Date and signed by the Chief Executive Officer and the Closing DateChief Financial Officer of the Company, to the Purchaser effect of paragraphs 7(a) and (b).
(d) The Purchasers shall have received an opinionopinion of Faegre & ▇▇▇▇▇▇ LLP, dated counsel to the Company, with respect to the authorization of the Preferred Stock, the Conversion Shares, the Warrants and the Warrant Shares and other customary matters in the form attached hereto as Exhibit D.
(e) The Company shall have entered into a Registration Rights Agreement with the Purchasers substantially in the form of Exhibit C hereto.
(f) The Company shall have entered into a merger agreement (the “Merger Agreement”) substantially in the form of Exhibit E hereto with a NASDAQ listed company (the “Public Company”) identified by MAG and acceptable to the Company providing for the merger of a wholly owned subsidiary of the Public Company into the Company, with the Company as the surviving entity (the “Merger”). Pursuant to the Merger, (i) the Public Company shall issue sufficient shares to the Company such respective datethat the Company’s shareholders on a fully diluted basis (including the Series A Preferred Stock) shall own 92.0% of the resulting entity and the Public Company shareholders on a fully diluted basis shall own 8.0% of the resulting entity; (ii) the management and board of directors of the Company shall remain the management and board of directors following the closing of the Merger; and (iii) the existing business assets and liabilities of the Public Company will be spun off or sold. Such Merger Agreement shall remain in full force and effect and shall not have been terminated by any party thereto as of the Closing Date.
(g) The Company shall have entered into employment agreements with each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇▇▇ (collectively, the “Management”). The equity compensation payable to the Management pursuant to such employment and/or consulting agreements shall be substantially as set forth on Schedule B hereto.
(h) It shall be a condition to the obligations of the Initial Closing Purchasers that the Company shall have entered into lock up agreements in the form attached hereto as Exhibit F with each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Alaskan, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, to the effect that:▇▇▇▇.
(i) It shall be a condition to the obligations of the Second Closing Purchasers that the Company shall have entered into lock up agreements in the form attached hereto as Exhibit F with each officer or director of the Company and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each any shareholder holding 100,000 or more shares of the Company Common Stock (other than the Purchasers).
(j) It shall be a condition to the obligations of the Second Closing Purchasers that the Company shall have received on or prior to the Second Closing Date executed waivers from each of its shareholders (other than the Purchasers) waiving any and BJI has corporate power all pre-emptive rights to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each purchase additional shares of Common Stock of 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 under any present 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain previous provisions of the capital stock Company’s Articles of Incorporation, and releasing any and all claims that any such shareholder may have against the Company related to any such pre-emptive rights, such waiver to be in a form Exhibit G hereto.
(k) It shall be a condition to the obligations of the Company or BJI, are correct in Second Closing Purchasers that all material respects; and conditions precedent to the statements set forth under the headings "The Distribution--Federal Income Tax Aspects closing of 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 Merger pursuant to the Prospectus, and under Merger Agreement shall have been satisfied or waived.
(l) It shall be a condition to the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary obligations of the legal matters, documents Second Closing Purchasers that the Company shall have entered into an employment agreement with a Chief Financial Officer reasonably acceptable to the Purchasers on or proceedings referred prior to therein, are correct in all material respects;the Second Closing Date.
Appears in 1 contract
Sources: Subscription Agreement (M Wave Inc)
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the each Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in consummate the Purchaser's sole discretion, Closing are subject to the accuracy satisfaction or waiver by such Purchaser on or before the Closing Date of the following conditions:
(i) No Material Adverse Effect shall have occurred since the date hereof;
(ii) The representations and warranties of each of the Company contained in this Agreement shall be true and BJI contained herein correct in all material respects as of the date hereof and as of the Expiration Date, Closing Date with the Redemption Date same force and the Closing Date, effect as if made on and as of the Expiration DateClosing Date (other than those qualified by materiality, Redemption Date and the Closing DateMaterial Adverse Effect or similar qualifications, 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company, BJI or the Purchaser, which shall be contemplated by the Commission; true in all respects), except for those representations and each warranties which address matters only as of the Company a particular date (which shall remain true and BJI shall have complied with any request correct as of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwisesuch date).
(b) On each of the effective date of the Registration Statement and the Closing Date, the Purchaser shall have received an opinion, dated such respective date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, to the effect that:
(i) each of the Company and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the Prospectus, and each of 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 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 Company, certifying as to the matters set forth in Section 8(a)(i), (ii) and (iii);
(v) As of the Closing Date, none of the 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 full force and BJI has an authorized capitalization effect;
(ix) The Company shall have approved the Tax Benefits Preservation Agreement Exemption Request attached as Exhibit A hereto in accordance with the procedures set forth in the Prospectus; the Conversion Shares, including the Shares, Tax Benefits Preservation Agreement;
(x) The Note Purchase Agreement and all principal transaction documents related thereto shall have been duly authorized executed by the applicable parties and reserved for issuance the initial closing of the transactions contemplated by all necessary corporate action the Note Purchase Agreement have been completed prior to Closing;
(xi) Each of the Purchasers shall have received on and as of the Closing Date written evidence reasonably satisfactory to it of the good standing of the Company upon either conversion in the State of Delaware, in writing or any standard form of telecommunication from the Securities appropriate governmental authorities of such jurisdiction;
(xii) Such Purchaser shall have received on the Closing Date an opinion of counsel of ▇▇▇▇▇▇▇ Procter LLP in the form attached as Exhibit B hereto;
(xiii) All fees and expenses incurred on or issuance prior to the Purchaser hereunder; the Conversion Shares, including the Shares, when issued date of Closing and required to be paid or reimbursed by the Company upon either conversion 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) 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 Securities Company or issuance the laws of the jurisdiction of its incorporation or (ii) under any stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership of shares of Common Stock or a change in control of the Purchaser hereunderCompany or any of its Subsidiaries, andincluding without limitation, the Tax Benefits Preservation Agreement, unless such trigger event has been waived and will not result in the case issuance 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 knowledge of such counsel, no holders of outstanding any shares of capital stock of the Company are entitled as such to any preemptive Company, or other rights to subscribe options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, securities convertible into or exchangeable for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company Company, or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects other agreements or rights to purchase or otherwise acquire capital stock of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations obligation of ----------------------------------------- the each Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall be subject, in the Purchaser's sole discretion, to the accuracy of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 Securities is subject to the following additional conditionsconditions unless waived in writing by the Purchaser:
(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 representations and the Company may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge of the Company, BJI or the Purchaser, shall be contemplated by the Commission; and each warranties of the Company contained in this Agreement shall be true and BJI correct 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; the Company shall have complied in all material respects with any request of the Commission for additional information (all agreements and satisfied all conditions on its part to be included in performed or satisfied hereunder at or prior to the Registration Statement or the Prospectus or otherwise)Closing Date.
(b) On each None of the effective date issuance and sale of the Registration Statement 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 Purchasers shall have received certificates, dated the Closing Date and signed by the Chief Executive Officer and the Closing DateChief Financial Officer of the Company, to the Purchaser effect of paragraphs 5(a) and (b).
(d) The Purchasers shall have received an opinion, dated such respective date, opinion of ▇▇▇▇ and ▇▇▇▇ & Whitney LLP, counsel for the Company and BJI, to the effect that:
(i) each of the Company and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described in the Registration Statement and the ProspectusCompany, and each of 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 with respect 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 authorization of the Shares, paid for by the Purchaser pursuant to this Agreement, will be validly issued, fully paid Warrant and nonassessable; the Conversion Shares, including Warrant Shares and other customary matters in the Shares, form attached hereto as Exhibit C.
(e) The Purchasers shall have been duly authorized for listing, subject to official notice a right of issuance, first refusal on any financing in which the NYSE (provided that this opinion need not be rendered on Company is the effective issuer of debt or equity securities between the Closing Date and the date of effectiveness of the Second Registration Statement); .
(f) The Company shall have submitted to the knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute Purchasers a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;six month forward cash flow plan.
Appears in 1 contract
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall the Series 2023 Bonds will be subject, in the Purchaser's sole discretion, subject to the accuracy of the representations and warranties of each on the part of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 hereofIssuer herein, to the performance by each of the Issuer and the Company and BJI of its covenants and agreements their respective obligations hereunder and to the following additional conditionsconditions 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 entities constituting the Company (acting as counsel to the Company, as the tenant under the Lease and to 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) 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no stop order suspending the effectiveness each of the Registration Statement or any post-effective amendment thereto representations 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge warranties of the CompanyIssuer set forth in Section 1 hereof is true, BJI or accurate and complete in all material respects as of the PurchaserClosing Time, shall be contemplated by the Commission; and each of the Company and BJI shall have agreements of the Issuer set forth in this Agreement to be complied with any request at or prior to the Closing Time has been complied with as of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise).such time; and
(b) On each no litigation is pending, or to such official’s knowledge threatened, to restrain or enjoin the issuance, execution, sale or delivery of the effective Series 2023 Bonds or contesting the issuance or the validity of the Series 2023 Bonds, the Ordinance, the 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 the Registration Statement and the Closing Date, the Purchaser shall have received an opinion, dated such respective date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, closing to the effect that:
(ia) each of the Company representations and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each warranties of the Company set forth in Section 2 hereof is true, accurate and BJI has corporate power to own or lease its properties and conduct its business complete in all material respects as described in of the Registration Statement and the ProspectusClosing Time, and each of 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 agreements of the Company and BJI has an authorized capitalization as set forth in this Agreement to be complied with at or prior to the ProspectusClosing Time has been complied with as of such time; and
(b) insofar as the Conversion Sharessigners of such certificate or certificates are aware, including after reasonable investigation, since the Sharesdate of this Agreement, have there has been duly authorized and reserved for issuance by all necessary corporate action no material adverse change in the property or financial position of the Company upon either conversion or results of operation of the Securities Company; and
(c) no litigation is pending, 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 knowledge of such counselthe Company threatened, no holders to restrain or enjoin the issuance, execution, sale or delivery of outstanding shares the Series 2023 Bonds or in any way contesting or affecting any authority for issuance or the validity of capital stock 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 entitled as such to any preemptive not satisfied or other rights to subscribe if the obligations of the Purchaser shall be terminated for any of reason permitted by this Agreement, this Agreement shall terminate and neither the Conversion Shares, including Purchaser nor the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to Issuer shall have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;any further obligations hereunder.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions of the Purchaser’s Obligations. The obligations of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any Shares shall the Series 2024 Bonds will be subject, in the Purchaser's sole discretion, subject to the accuracy of the representations and warranties of each on the part of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, 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 hereofIssuer herein, to the performance by each of the Issuer and the Company and BJI of its covenants and agreements their respective obligations hereunder and to the following additional conditionsconditions 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 entities constituting the Company (acting as counsel to the Company, as the tenant under the Lease and to 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) 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act; no stop order suspending the effectiveness each of the Registration Statement or any post-effective amendment thereto representations 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 have been issued and no proceedings for that purpose shall have been instituted or threatened or, to the knowledge warranties of the CompanyIssuer set forth in Section 1 hereof is true, BJI or accurate and complete in all material respects as of the PurchaserClosing Time, shall be contemplated by the Commission; and each of the Company and BJI shall have agreements of the Issuer set forth in this Agreement to be complied with any request at or prior to the Closing Time has been complied with as of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise).such time; and
(b) On each no litigation is pending, or to such official’s knowledge threatened, to restrain or enjoin the issuance, execution, sale or delivery of the effective Series 2024 Bonds or contesting the issuance or the validity of the Series 2024 Bonds, the Ordinance, the 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 the Registration Statement and the Closing Date, the Purchaser shall have received an opinion, dated such respective date, of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Company and BJI, closing to the effect that:
(ia) each of the Company representations and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each warranties of the Company set forth in Section 2 hereof is true, accurate and BJI has corporate power to own or lease its properties and conduct its business complete in all material respects as described in of the Registration Statement and the ProspectusClosing Time, and each of 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 agreements of the Company and BJI has an authorized capitalization as set forth in this Agreement to be complied with at or prior to the ProspectusClosing Time has been complied with as of such time; and
(b) insofar as the Conversion Sharessigners of such certificate or certificates are aware, including after reasonable investigation, since the Sharesdate of this Agreement, have there has been duly authorized and reserved for issuance by all necessary corporate action no material adverse change in the property or financial position of the Company upon either conversion or results of operation of the Securities Company; and
(c) no litigation is pending, 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 knowledge of such counselthe Company threatened, no holders to restrain or enjoin the issuance, execution, sale or delivery of outstanding shares the Series 2024 Bonds or in any way contesting or affecting any authority for issuance or the validity of capital stock 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 entitled as such to any preemptive not satisfied or other rights to subscribe if the obligations of the Purchaser shall be terminated for any of reason permitted by this Agreement, this Agreement shall terminate and neither the Conversion Shares, including Purchaser nor the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to Issuer shall have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; and the statements set forth under the headings "The Distribution--Federal Income Tax Aspects of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;any further obligations hereunder.
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Sources: Bond Purchase Agreement
Conditions of the Purchaser’s Obligations. The obligations obligation of ----------------------------------------- the Purchaser to surrender for conversion Securities and to purchase and pay for any the Standby Shares shall be subject, in the Purchaser's sole discretion, is subject to the accuracy accuracy, on the date of this Agreement and on the Delivery Date, of the representations and warranties of each of the Company and BJI contained herein as of the date hereof and as of the Expiration Date, the Redemption Date and the Closing Date, as if made on and as of the Expiration Date, Redemption Date and the Closing Date, respectivelyin this Agreement, to performance by the accuracy Company of the statements of the officers of its obligations under this Agreement and to 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 must 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 may agree upon; if required, the Prospectus and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rule 424(bbecome effective.
(b) under the Act; no stop No order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference may be in the Registration Statement or any post-effective amendment thereto or the Prospectus or any amendment or supplement thereto shall have been issued effect and no proceedings for that such purpose shall have been instituted may be pending before or threatened or, to the knowledge of the Company, BJI or the Purchaser, shall be contemplated by the Commission; , and each of any requests for additional information on the Company and BJI shall have complied with any request part of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise)) must have been complied with to the reasonable satisfaction of the Purchaser.
(bc) On each The Company, Executone and certain affiliates of the effective date of the Registration Statement and the Closing Date, the Purchaser shall have received an opinionentered into a Share Exchange Agreement, dated such respective dateas of even date herewith (the "Share Exchange Agreement"), of ▇▇▇▇ all representations and ▇▇▇▇ LLP, counsel for the Company and BJI, to the effect that:
(i) each warranties of the Company and BJI has been duly incorporated and is validly existing as a 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 Commonwealth of Massachusetts;
(ii) each of the Company and BJI has corporate power to own or lease its properties and conduct its business as described Executone contained in the Registration Statement Share Exchange Agreement shall be true and the Prospectus, and each of 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 knowledge of such counsel, no holders of outstanding shares of capital stock of the Company are entitled as such to any preemptive or other rights to subscribe for any of the Conversion Shares, including the Shares; and to the knowledge of such counsel no holders of securities of the Company are entitled to have such securities registered under the Registration Statement;
(iv) the 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 statements purport to summarize certain provisions of the capital stock of the Company or BJI, are correct in all material respects; respects as of the date hereof and Executone and Unistar shall have performed all obligations and complied with all agreements, undertakings, covenants and conditions required under the Share Exchange Agreement as of the date hereof.
(d) The Company and Executone shall have entered into the Reorganization Agreement, as of even date herewith (the "Reorganization Agreement"), and the statements set forth Company and Executone shall have performed all obligations and complied with all agreements, undertakings, covenants and conditions required under the headings "The Distribution--Federal Income Tax Aspects Reorganization Agreement as of 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 Prospectus, and under the heading "Legal Proceedings" in the Company's Form 10-K, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are correct in all material respects;date hereof.
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