Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Preferred Securities on the First Closing Date and the Option Preferred Securities on the Second Closing Date are subject to the condition that all representations and warranties of the Offerors contained herein are true and correct, at and as of the First Closing Date or the Second Closing Date, as the case may be, and the condition that each Offeror shall have performed all of its covenants and obligations hereunder and to the following additional conditions: (a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriters. (b) The Underwriters shall have received on the First Closing Date or the Second Closing Date, as the case may be, the opinion of Jonex & Xellxx, X.C., Denver, Colorado, counsel for the Offerors, dated the Closing Date, addressed to the Underwriters, 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 jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. All of the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. The holders of the Company's outstanding (ii) Each Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. The outstanding capital stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned, directly or indirectly, by the Company, free and clear of all liens, encumbrances and security interests, other than security interests specifically disclosed in the Prospectus. To the knowledge of such counsel, no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into capital stock or ownership interests in any Subsidiary are outstanding. (iii) All of the issued and outstanding Common Securities of the Trust are owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right. (iv) The Trust Agreement, the Indenture, the Guarantee, the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Indenture, the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Trust Agreement, and the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Guarantee Agreement have been duly qualified under the Trust Indenture Act. (v) The Junior Subordinated Debentures are in the form contemplated by the Indenture, have been duly authorized, executed and delivered by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture and delivered against payment therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity. (vi) The Junior Subordinated Debentures are subordinate and junior in right of payment to all "Senior and Subordinated Debt" (as defined in the Indenture) of the Company. (vii) Under current law, the Trust will be classified for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation; accordingly, for United States federal income tax purposes each beneficial owner of Preferred Securities will be treated as owning an undivided (viii) For federal income tax purposes, (a) the Junior Subordinated Debentures will constitute indebtedness of the Company and (b) the interest on the Junior Subordinated Debentures will be deductible by the Company on an economic accrual basis in accordance with Section 163(e) of the Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.1637. (ix) To the best of such counsel's knowledge and information after due inquiry, the Trust is not required to be authorized to do business in any other jurisdiction, except where the failure to be so authorized would not have a material adverse effect on the Trust's condition (financial or otherwise), earnings, business, prospects, assets, results of operations or properties taken as a whole and the Trust is not a party to or otherwise bound by any material agreement other than those described in the Prospectus. (x) The Trust Agreement has been duly executed and delivered by the Administrative Trustees. (xi) To the best of such counsel's knowledge and information after due inquiry, the Offerors are not in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or any other instrument of which either of them is a party or by which either of them may be bound, or to which any of the property or assets of the Offerors is subject. (xii) The Company has full corporate power and authority and the Trust has full trust power and authority to enter into this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and to issue the Junior Subordinated Debentures or the Common Securities and Preferred Securities, as the case may be, and to effect the transactions contemplated by this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and each of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement have been duly authorized, executed and delivered by the Company and the Trust, as applicable, and constitutes a valid, legal and binding obligation of the Company and the Trust, as applicable, enforceable in accordance with its terms (except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity). The execution, delivery and performance of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, the (xiii) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order proceedings with respect thereto have been instituted or are pending or threatened by the Commission. (xiv) The Registration Statement, the Prospectus and each amendment or supplement, thereto comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements and related financial schedules contained in the financial statements, Registration Statement, the Prospectus and each amendment or supplement thereto).
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Preferred Securities Shares on the First Closing Date and the Option Preferred Securities Shares, if any, on the Second Option Closing Date are subject to the condition that all representations and warranties of the Offerors contained herein are true and correctaccuracy, at and as of the First Closing Date or the Second Option Closing Date, as the case may be, of the representations and warranties of the Company and the condition that each Offeror shall have performed all Selling Shareholder contained herein, and to the performance by the Company and the Selling Shareholder of its their covenants and obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; no No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated taken or, to the knowledge of the Company or threatened the Selling Shareholder, shall be contemplated by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriters.
(b) The Underwriters Representatives shall have received on the First Closing Date or the Second Option Closing Date, as the case may be, the opinion of Jonex King & Xellxx, X.C., Denver, ColoradoSpalding, counsel for the OfferorsCompany and the Selling Shareholder, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters, Underwriters to the effect that:
(i) The Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State of Georgia, with corporate power and authority to own its properties and conduct its business as described in the Prospectus; each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporationincorporation (to the extent "good standing" is a concept recognized by such jurisdiction), with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. All ; the Company and each of the issued Subsidiaries are duly qualified to transact business in all jurisdictions in which the conduct of their business requires such qualification, except where the failure to be so qualified would not have a material adverse effect upon the business of the Company and the Subsidiaries taken as a whole; and the outstanding shares of the capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. The holders of the Company's outstanding
(ii) Each Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. The outstanding capital stock of each such Subsidiary has of the Subsidiaries have been duly authorized and validly issued, is are fully paid and nonassessable non-assessable and is owned, directly or indirectly, are owned by the CompanyCompany or a Subsidiary; and, to the best of such counsel's knowledge, the outstanding shares of capital stock of each of the Subsidiaries is owned free and clear of all liens, encumbrances and security interests, other than the security interests specifically disclosed in interest granted to First Union National Bank of Georgia ("First Union") pursuant to the Prospectus. To the knowledge of such counselCompany's 1997 credit facility with First Union, as amended, and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into any shares of capital stock or of ownership interests in any Subsidiary the Subsidiaries are outstanding.
(iiiii) All The Company has authorized and outstanding capital stock as set forth under the caption "Capitalization" in the Prospectus; the authorized shares of its Common Stock have been duly authorized; the outstanding shares of its Common Stock, including the Shares to be sold by the Selling Shareholder, have been duly authorized and validly issued and outstanding are fully paid and non-assessable; the Shares conform to the description thereof contained in the Prospectus; the certificates for the Shares comply with the requirements of Georgia law; the shares of Common Securities of Stock, including the Trust are owned Option Shares, if any, to be sold by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(iv) The Trust Agreement, the Indenture, the Guarantee, the Form T1 Statement of Eligibility of Wilmington Trust Company pursuant to act as trustee under the Indenture, the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Trust Agreement, and the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Guarantee this Agreement have been duly qualified under the Trust Indenture Act.
(v) The Junior Subordinated Debentures are in the form contemplated by the Indenture, have been duly authorized, executed authorized and delivered by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture and delivered against payment therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(vi) The Junior Subordinated Debentures are subordinate and junior in right of payment to all "Senior and Subordinated Debt" (as defined in the Indenture) of the Company.
(vii) Under current law, the Trust will be classified validly issued, fully paid and non-assessable when issued and paid for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation; accordingly, for United States federal income tax purposes each beneficial owner of Preferred Securities will be treated as owning an undivided
(viii) For federal income tax purposes, (a) the Junior Subordinated Debentures will constitute indebtedness of the Company and (b) the interest on the Junior Subordinated Debentures will be deductible by the Company on an economic accrual basis in accordance with Section 163(e) of the Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.1637.
(ix) To the best of such counsel's knowledge and information after due inquiry, the Trust is not required to be authorized to do business in any other jurisdiction, except where the failure to be so authorized would not have a material adverse effect on the Trust's condition (financial or otherwise), earnings, business, prospects, assets, results of operations or properties taken as a whole and the Trust is not a party to or otherwise bound by any material agreement other than those described in the Prospectus.
(x) The Trust Agreement has been duly executed and delivered by the Administrative Trustees.
(xi) To the best of such counsel's knowledge and information after due inquiry, the Offerors are not in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or any other instrument of which either of them is a party or by which either of them may be bound, or to which any of the property or assets of the Offerors is subject.
(xii) The Company has full corporate power and authority and the Trust has full trust power and authority to enter into this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and to issue the Junior Subordinated Debentures or the Common Securities and Preferred Securities, as the case may be, and to effect the transactions contemplated by this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement ; and the Expense Agreement, as applicable, and each no preemptive rights of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement have been duly authorized, executed and delivered by the Company and the Trust, as applicable, and constitutes a valid, legal and binding obligation shareholders exist with respect to any of the Company Shares or the issue and the Trust, as applicable, enforceable in accordance with its terms (except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity). The execution, delivery and performance of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, thesale thereof.
(xiiiiii) The Registration Statement has become effective under the Act and, to the best of the knowledge of such counsel, no stop order proceedings with respect thereto have been instituted or are pending or threatened by under the CommissionAct.
(xiviv) The Registration Statement, the Prospectus and each amendment or supplement, supplement thereto comply as to form in all material respects with the requirements of the Act and the applicable rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements, schedules and other financial and statistical information included therein).
(v) The statements under the captions "Management - Employment Agreements," "Management - Employee Benefits Plans," "Description of Capital Stock" and related financial schedules contained "Shares Eligible for Future Sale" in the financial statementsProspectus, Registration Statementinsofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and correctly present the Prospectus information called for with respect to such documents and each amendment or supplement thereto)matters.
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Preferred Securities Shares on the First Closing Date and the Option Preferred Securities Shares, if any, on the Second Option Closing Date are subject to the condition that all representations and warranties of the Offerors contained herein are true and correctaccuracy, at and as of the First Closing Date or the Second Option Closing Date, as the case may be, of the representations and warranties of the condition that each Offeror shall have performed all Company contained herein, and to the performance by the Company of its covenants and obligations hereunder and to the following additional conditions:
(a) The Prospectus Registration Statement and all post-effective amendments thereto shall have become effective and any and all filings required by Rule 424 and Rule 430A of the Rules and Regulations shall have been filed with made, and any request of the Commission pursuant for additional information (to Rule 424(bbe included in the Registration Statement or otherwise) within shall have been disclosed to the applicable time period prescribed for such filing by the rules Representatives and regulations under the Act and in accordance complied with Section 4(a) hereof; no to their reasonable satisfaction. No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened taken or, to the knowledge of the Company, shall be contemplated by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriters.
(b1) The Underwriters Representatives shall have received on the First Closing Date or the Second Option Closing Date, as the case may be, the opinion of Jonex Powell, Goldstein, Frazxx & Xellxx, X.C., Denver, ColoradoXurpxx XXX, counsel for the OfferorsCompany, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters, Underwriters to the effect that:
(i) The Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own, and hold under lease, its properties and conduct its business as described in the Prospectus. Based upon appropriate certificates of public officials (which shall be furnished to the Representatives with the opinion), each of the Subsidiaries listed on Schedule IV, other than Mediacom Inc. and its subsidiaries (the "U.S. Subsidiaries"), has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, incorporation with corporate power and authority to own or lease own, and hold under lease, its properties and conduct its business as described in the Prospectus. All .
(ii) Based upon appropriate certificates of public officials (which shall be furnished to the Representatives with the opinion), each of the issued Company and the U.S. Subsidiaries is duly qualified to transact business as a foreign corporation and is in good standing under the laws of each of the jurisdictions in which the conduct of its business requires such qualification, except to the extent that the failure to qualify would not, in the aggregate, reasonably be expected to have a material adverse effect on the business or financial condition of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect").
(iii) The outstanding shares of the capital stock of the Company U.S. Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable. The holders non-assessable, except that such counsel need not express an opinion with respect to the shares of Decode Communications Group, Inc. and such Advertising Company of Colorado, Inc.. To the Company's outstanding
(ii) Each Subsidiary best knowledge of such counsel, the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws shares of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. The outstanding capital stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned, directly or indirectly, the U.S. Subsidiaries are owned by the Company, Company or one of the other U.S. Subsidiaries free and clear of all liens, encumbrances and security interests, interests (other than security interests specifically disclosed liens granted by the Company in connection with the ProspectusSenior Credit Facility). To the knowledge of such counsel, no No options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into shares of capital stock or ownership interests in any Subsidiary of the U.S. Subsidiaries are outstanding.
(iii) All of the issued and outstanding Common Securities of the Trust are owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(iv) The Trust Agreement, the Indenture, the Guarantee, the Form T1 Statement of Eligibility of Wilmington Trust Company to act has authorized and outstanding capital stock as trustee set forth under the Indenture, caption "Capitalization" in the Form T1 Statement Prospectus; the authorized shares of Eligibility of Wilmington Trust Company to act as trustee under the Trust Agreement, and the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Guarantee Agreement its Common Stock have been duly qualified under authorized; the Trust Indenture Actoutstanding shares of its Common Stock, including the Shares to be sold by the Selling Shareholders, have been duly authorized and validly issued and are fully paid and non-assessable; all of the Shares conform in all material respects to the description thereof contained in the Prospectus; and the certificates for the Shares conform to the requirements of the Delaware General Corporation Law.
(v) The Junior Subordinated Debentures are in Shares, including the form contemplated Option Shares, if any, to be sold by the Indenture, Company pursuant to this Agreement have been duly authorizedauthorized and will be validly issued, executed fully paid and delivered non-assessable when issued and paid for as contemplated by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture this Agreement; and delivered against payment therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the no statutory preemptive rights of creditors generally and subject stockholders or, to general principles of equity.
(vi) The Junior Subordinated Debentures are subordinate and junior in right of payment to all "Senior and Subordinated Debt" (as defined in the Indenture) of the Company.
(vii) Under current law, the Trust will be classified for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation; accordingly, for United States federal income tax purposes each beneficial owner of Preferred Securities will be treated as owning an undivided
(viii) For federal income tax purposes, (a) the Junior Subordinated Debentures will constitute indebtedness of the Company and (b) the interest on the Junior Subordinated Debentures will be deductible by the Company on an economic accrual basis in accordance with Section 163(e) of the Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.1637.
(ix) To the best of such counsel's knowledge and information after due inquiryknowledge, the Trust is not required to be authorized to do business in any other jurisdiction, except where preemptive rights exist with respect to any of the failure to be so authorized would not have a material adverse effect on Shares or the Trust's condition (financial or otherwise), earnings, business, prospects, assets, results of operations or properties taken as a whole issue and the Trust is not a party to or otherwise bound by any material agreement other than those described in the Prospectussale thereof.
(x) The Trust Agreement has been duly executed and delivered by the Administrative Trustees.
(xi) To the best of such counsel's knowledge and information after due inquiry, the Offerors are not in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or any other instrument of which either of them is a party or by which either of them may be bound, or to which any of the property or assets of the Offerors is subject.
(xii) The Company has full corporate power and authority and the Trust has full trust power and authority to enter into this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and to issue the Junior Subordinated Debentures or the Common Securities and Preferred Securities, as the case may be, and to effect the transactions contemplated by this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and each of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement have been duly authorized, executed and delivered by the Company and the Trust, as applicable, and constitutes a valid, legal and binding obligation of the Company and the Trust, as applicable, enforceable in accordance with its terms (except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity). The execution, delivery and performance of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, the
(xiiivi) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order proceedings with respect thereto have been instituted or are pending or threatened by under the CommissionAct.
(xivvii) The Registration Statement, all Preliminary Prospectuses, the Prospectus and each amendment or supplement, supplement thereto filed with the Commission on or prior to the date of such opinion comply as to form in all material respects with the requirements of the Act and the applicable rules and regulations thereunder in effect as of the time of such filing (except that such counsel need express no opinion as to the financial statements, schedules and other financial information included therein).
(ix) The conditions for the use of Form S-3 as the proper form for the Registration Statement have been satisfied.
(x) The statements under the captions "Prospectus Summary -- Recent Developments," "Risk Factors -- Restrictions on Tobacco Advertising," "Risk Factors -- Regulation of Outdoor Advertising," "Management's Discussion and related financial schedules contained Analysis of Results of Operations and Financial Condition -- Liquidity and Capital Resources," "Description of Capital Stock" and "Description of Indebtedness and Other Commitments" in the Prospectus and under the caption "Business -- Government Regulation" in the Company's annual report on Form 10-K, insofar as such statements are descriptions of documents referred to therein are fair summaries of the documents so summarized, and insofar as such statements are summaries of matters of law, such summaries present accurately in all material respects the information called for with respect to such matters of law.
(xi) Such counsel does not know of any contracts or documents required to be filed as exhibits to or incorporated by reference in the Registration Statement or described in the Registration Statement or the Prospectus which are not so filed, incorporated by reference or described as required.
(xii) Such counsel knows of no material legal proceedings or regulatory or other claims pending or threatened against the Company, the U.S. Subsidiaries Van Xxxxxx xx NAC of a character required to be reflected in the Prospectus that are not set forth in the Prospectus.
(xiii) The Pending Acquisition Agreements have been duly authorized, executed and delivered by the Company.
(xiv) The execution and delivery of this Agreement and the consummation of the transactions herein contemplated, and the execution and delivery of the Pending Acquisition Agreements and the consummation of the transaction therein contemplated, do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the Certificate of Incorporation or By-Laws of the Company, or any agreement or instrument filed as an exhibit to the Registration Statement or otherwise identified to such counsel as being material to the Company and the Subsidiaries in an appropriate certificate of the Company, to which the Company or any of the U.S. Subsidiaries is a party or by which the Company or any of the U.S. Subsidiaries may be bound
(xv) This Agreement has been duly authorized, executed and delivered by the Company.
(xvi) Except for approvals, consents, orders, authorizations, designations, declarations or filings which have been waived, or which have been obtained or made, no approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body is necessary in connection with the execution and delivery by the Company of this Agreement and the consummation by the Company of the transactions herein contemplated (other than as may be required by the NASD or as required by State securities and Blue Sky laws as to which such counsel need express no opinion).
(xvii) The Company is not, and will not become as a result of the consummation of the transactions contemplated by this Agreement, an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and has not been an "investment company" at any time since 1988. In rendering such opinion, Powell, Goldstein, Frazxx & Xurpxx XXX may rely as to matters governed by the laws of states other than Georgia or Federal laws on local counsel in such jurisdictions provided that in each case Powell, Goldstein, Frazxx & Xurpxx XXX shall state that they believe that they and the Underwriters are justified in relying on such other counsel and such other counsel's opinion is also delivered to the Underwriters. In addition to the matters set forth above, such opinion shall also include a statement to the effect that nothing has come to the attention of such counsel which causes them to believe that (A) the Registration Statement, as of the time it became effective under the Act (but after giving effect to any modifications incorporated therein pursuant to Rule 430A under the Act) and as of the Closing Date or the Option Closing Date, as the case may be, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) the Prospectus or any supplement thereto, on the date it was filed pursuant to Rules and Regulations and as of the Closing Date or the Option Closing Date, as the case may be, 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 (except that such counsel need express no view as to financial statements, Registration Statementschedules and other financial information included or incorporated by reference therein). With respect to such statement, Powell, Goldstein, Frazxx & Xurpxx XXX may state that their belief is based upon the Prospectus procedures set forth therein, but is without independent check and each amendment or supplement thereto)verification.
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Preferred Capital Securities on the First Closing Date and the Option Preferred Securities on the Second Closing Date are subject to the condition that all representations and warranties of the Offerors contained herein are true and correct, at and as of the First Closing Date or the Second Closing Date, as the case may be, and the condition that each Offeror shall have performed all of its covenants and obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriters.
(b) The Underwriters shall have received on the First Closing Date or the Second Closing Date, as the case may be, the opinion of Jonex Witherspoon, Kelley, Davexxxxx & XellxxXoolx, X.C.X.X., Denver, Colorado, counsel xxunsel for the Offerors, dated the Closing Date, addressed to the Underwriters, 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 jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. All of the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. The holders of the Company's outstandingoutstanding securities are not entitled to any preemptive or other rights to subscribe for the Junior Subordinated Debentures or the Capital Securities under the Company's Articles of Incorporation or Bylaws and, to the knowledge of such counsel, no such rights exist under any other agreement or arrangement. The Company has authorized and outstanding capital stock as described in the Prospectus.
(ii) Each Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporationincorporation and is in compliance with all applicable federal and state regulatory rules and guidelines, with corporate power and authority to own or lease its properties and conduct its business as described 15 in the Prospectus. The outstanding capital stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned, directly or indirectly, by the Company, free and clear of all liens, encumbrances and security interests, other than security interests specifically disclosed in the Prospectus. To the knowledge of such counsel, no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into capital stock or ownership interests in any Subsidiary are outstanding.
(iii) Sterling Savings has been duly chartered to conduct the business of a savings and loan association in the State of Washington and the Company has all necessary power and authority to own Sterling Savings. The Company and Sterling Savings have all necessary consents and approvals under applicable federal and state laws and regulations relating to savings and loan associations and savings and loan holding companies ("savings and loan laws") to own their respective assets and carry on their respective businesses as currently conducted.
(iv) The statements in the Prospectus under the captions "Risk Factors -- Dividend Payment Sources and Restrictions, -- Status of the Company as a Savings and Loan Holding Company and -- Certain Regulatory Matters" and in the Company's Annual Report on Form 10-K for the year ended December 31, 1996 under the caption "Regulation," insofar as such statements constitute a summary of savings and loan laws, are accurate summaries and fairly present the information called for with respect to such matters.
(v) The execution and delivery of this Agreement, the Indenture, the Trust Agreement, and the Guarantee Agreement and the consummation of the transactions herein and therein contemplated do not and will not conflict with or result in a violation of or default under any savings and loan association laws, or any permit, judgment, decree or order known to such counsel, or any lease, contract, indenture, mortgage, loan agreement or other agreement or other instrument or obligation known to such counsel to which the Company or Sterling Savings is a party or by which the Company or Sterling Savings or any of their respective properties is bound.
(vi) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body under any savings and loan association laws is necessary in connection with the execution and delivery by the Offerors of this Agreement, the Indenture, the Trust Agreement, and the Guarantee Agreement and the consummation of the transactions herein and therein contemplated, except such as have been obtained or made, specifying the same.
(vii) All of the issued and outstanding Common Securities of the Trust are owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(iv) The Trust Agreement, the Indenture, the Guarantee, the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Indenture, the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Trust Agreement, and the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Guarantee Agreement have been duly qualified under the Trust Indenture Act.
(vviii) The Junior Subordinated Debentures are in the form contemplated by the Indenture, have been duly authorized, executed and 16 delivered by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture and delivered against payment therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(viix) The Junior Subordinated Debentures are subordinate and junior in right of payment to all "Senior and Subordinated DebtIndebtedness" (as defined in the Indenture) of the Company.
(viix) Under current law, the Trust will be classified for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation; accordingly. Accordingly, for United States federal income tax purposes purposes, each beneficial owner of Preferred Capital Securities will be treated as owning an undividedundivided beneficial interest in the Junior Subordinated Debentures, and stated interest on the Junior Subordinated Debentures generally will be included in income by a holder of Capital Securities at the time such interest income is paid or accrued in accordance with such holder's regular method of tax accounting.
(viiixi) For federal income tax purposes, (a) the Junior Subordinated Debentures will constitute indebtedness debt of the Company and (b) the interest on the Junior Subordinated Debentures will be deductible by the Company on an economic accrual basis in accordance with Section 163(e) of the Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.16371.163-7.
(ixxii) To the best of such counsel's knowledge and information after due inquiryknowledge, the Trust is not required to be authorized to do business in any other jurisdiction, except where the failure to be so authorized would not have a material adverse effect on the Trust's condition (financial or otherwise), earnings, business, prospects, assets, results of operations or properties taken as a whole jurisdiction and the Trust is not a party to or otherwise bound by any material agreement other than those described in the Prospectus.
(x) The Trust Agreement has been duly executed and delivered by the Administrative Trustees.
(xixiii) To the best of such counsel's knowledge and information after due inquiryknowledge, the Offerors are not in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or any other instrument of which either of them is a party or by which either of them may be bound, or to which any of the property or assets of the Offerors is subject.
(xiixiv) The Company has full corporate power and authority and the Trust has full trust power and authority to enter into this Agreement, the Indenture, the Trust Agreement, and the Guarantee Agreement and the Expense Agreement, as applicable, and to issue the Junior Subordinated Debentures or the Common Securities and Preferred Capital Securities, as the case may be, and to effect the transactions contemplated by this Agreement, the Indenture, the Trust Agreement, and the Guarantee Agreement and the Expense Agreement, as applicable, and each of this Agreement, the Indenture, the Trust Agreement, and the Guarantee Agreement and the Expense Agreement have been duly authorized, executed and delivered by the Company and the Trust, as applicable, and constitutes a valid, legal and binding obligation of the Company and the Trust, as applicable, enforceable in accordance with its terms (except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity). The execution, delivery and performance of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, the
(xiii) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order proceedings with respect thereto have been instituted or are pending or threatened by the Commission.
(xiv) The Registration Statement, the Prospectus and each amendment or supplement, thereto comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements and related financial schedules contained in the financial statements, Registration Statement, the Prospectus and each amendment or supplement thereto).terms
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Preferred Securities Shares on the First Closing Date and the Option Preferred Securities Shares, if any, on the Second Option Closing Date are subject to the condition that all representations and warranties of the Offerors contained herein are true and correctaccuracy, at and as of the First Closing Date or the Second Option Closing Date, as the case may be, of the representations and warranties of the condition that each Offeror shall have performed all Company contained herein, and to the performance by the Company of its covenants and obligations hereunder and to the following additional conditions:
(a) The Prospectus Registration Statement and all post-effective amendments thereto shall have become effective and any and all filings required by Rule 424 and Rule 430A of the Rules and Regulations shall have been filed with made, and any request of the Commission pursuant for additional information (to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and be included in accordance with Section 4(a) hereof; no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement or any part thereof otherwise) shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriters.disclosed
(b) The Underwriters Representatives shall have received on the First Closing Date or the Second Option Closing Date, as the case may be, the opinion opinions of Jonex Dorsxx & Xellxx, X.C., Denver, ColoradoXhitxxx XXX ("Dorsxx & Xhitxxx"), counsel for the OfferorsCompany, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters (and stating that it may be relied upon by counsel to the Underwriters, ) to the effect that:
(i) The Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the jurisdiction State of its incorporationWashington, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. All Registration Statement; the Company is duly qualified to transact business in all jurisdictions in which the conduct of its business requires such qualification, or in which the failure to qualify would have a materially adverse effect upon the business of the issued Company.
(ii) The Company has authorized and outstanding capital stock as set forth under the caption "Capitalization" in the Prospectus as of the date and based on the assumptions stated therein; the authorized shares of the Company's Common Stock have been duly authorized; the outstanding shares of the capital stock of the Company Company's Common Stock have been duly authorized and validly issued and are fully paid and nonassessable. The holders non-assessable; and all of the Company's outstandingShares conform to the description thereof contained in the Prospectus; the certificates for the Shares, assuming they are in the form filed with the Commission, are in due and proper form in all material respects.
(iiiii) Each Subsidiary The shares of Common Stock, including the Option Shares, if any, to be sold by the Company pursuant to this Agreement have been duly authorized and will be validly issued, fully paid and non-assessable when issued and paid for as contemplated by this Agreement, and no preemptive rights of shareholders exist with respect to any of the Shares or the issue or sale thereof.
(iv) Except as described in or contemplated by the Prospectus, to the knowledge of such counsel, there are no outstanding securities of the Company has been duly incorporated and is validly existing as a corporation in good standing under convertible or exchangeable into or evidencing the laws right to purchase or subscribe for any shares of capital stock of the jurisdiction Company and there are no outstanding or authorized options, warrants or rights of any character obligating the Company to issue any shares of its incorporation, with corporate power capital stock or any securities convertible or exchangeable into or evidencing the right to purchase or subscribe for any shares of such stock; and authority to own or lease its properties and conduct its business except as described in the Prospectus. The outstanding capital stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned, directly or indirectly, by the Company, free and clear of all liens, encumbrances and security interests, other than security interests specifically disclosed in the Prospectus. To to the knowledge of such counsel, no optionsholder of any securities of the Company or any other person has the right, warrants contractual or otherwise, which has not been satisfied or effectively waived, to cause the Company to sell or otherwise issue to them, or to permit them to underwrite the sale of, any of the Shares or the right to have any Common Shares or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into capital stock or ownership interests in any Subsidiary are outstanding.
(iii) All securities of the issued and outstanding Common Securities of Company included in the Trust are owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(iv) The Trust Agreement, the Indenture, the Guarantee, the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Indenture, the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Trust Agreement, and the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Guarantee Agreement have been duly qualified under the Trust Indenture Act.Registration
(v) The Junior Subordinated Debentures are in the form contemplated by the Indenture, have been duly authorized, executed and delivered by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture and delivered against payment therefor, will constitute valid and binding obligations Based solely upon oral advice of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(vi) The Junior Subordinated Debentures are subordinate and junior in right of payment to all "Senior and Subordinated Debt" (as defined in the Indenture) Staff of the Company.
(vii) Under current lawCommission, the Trust will be classified for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation; accordingly, for United States federal income tax purposes each beneficial owner of Preferred Securities will be treated as owning an undivided
(viii) For federal income tax purposes, (a) the Junior Subordinated Debentures will constitute indebtedness of the Company and (b) the interest on the Junior Subordinated Debentures will be deductible by the Company on an economic accrual basis in accordance with Section 163(e) of the Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.1637.
(ix) To the best of such counsel's knowledge and information after due inquiry, the Trust is not required to be authorized to do business in any other jurisdiction, except where the failure to be so authorized would not have a material adverse effect on the Trust's condition (financial or otherwise), earnings, business, prospects, assets, results of operations or properties taken as a whole and the Trust is not a party to or otherwise bound by any material agreement other than those described in the Prospectus.
(x) The Trust Agreement has been duly executed and delivered by the Administrative Trustees.
(xi) To the best of such counsel's knowledge and information after due inquiry, the Offerors are not in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or any other instrument of which either of them is a party or by which either of them may be bound, or to which any of the property or assets of the Offerors is subject.
(xii) The Company has full corporate power and authority and the Trust has full trust power and authority to enter into this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and to issue the Junior Subordinated Debentures or the Common Securities and Preferred Securities, as the case may be, and to effect the transactions contemplated by this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and each of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement have been duly authorized, executed and delivered by the Company and the Trust, as applicable, and constitutes a valid, legal and binding obligation of the Company and the Trust, as applicable, enforceable in accordance with its terms (except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity). The execution, delivery and performance of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, the
(xiii) The Registration Statement has become effective under the Act and, to the best of the knowledge of such counsel, no stop order proceedings with respect thereto have been instituted or are pending or threatened by under the CommissionAct.
(xivvi) The Registration Statement, the Prospectus and each amendment or supplement, supplement thereto and document incorporated by reference therein comply as to form in all material respects with the requirements of the Act and the applicable rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements and related financial schedules contained therein).
(vii) The statements under the captions "Business - Government Regulation," "Management - Director and Officer Indemnification and Liability," "Related Party Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" in the financial statementsProspectus, Registration Statementinsofar as such statements constitute a summary of documents referred to therein or matters of law, fairly summarize in all material respects the Prospectus information called for with respect to such documents and each amendment or supplement thereto)matters.
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Preferred Securities Shares on the First Closing Date and the Option Preferred Securities Shares, if any, on the Second Option Closing Date are subject to the condition that all representations and warranties of the Offerors contained herein are true and correctaccuracy, at and as of the First Closing Date or the Second Option Closing Date, as the case may be, of the representations and warranties of the Company and the condition that each Offeror shall have performed all Selling Shareholder contained herein, and to the performance by the Company and the Selling Shareholder of its their covenants and obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; no No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated taken or, to the knowledge of the Company or threatened the Selling Shareholder, shall be contemplated by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriters.
(b) The Underwriters Representatives shall have received on the First Closing Date or the Second Option Closing Date, as the case may be, the opinion of Jonex King & Xellxx, X.C., Denver, ColoradoSpalding, counsel for the OfferorsCompany and the Selling Shareholder, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters, Underwriters to the effect that:
(i) The Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State of Georgia, with corporate power and authority to own its properties and conduct its business as described in the Prospectus; each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporationincorporation (to the extent "good standing" is a concept recognized by such jurisdiction), with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. All ; the Company and each of the issued Subsidiaries are duly qualified to transact business in all jurisdictions in which the conduct of their business requires such qualification, except where the failure to be so qualified would not have a material adverse effect upon the business of the Company and the Subsidiaries taken as a whole; and the outstanding shares of the capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. The holders of the Company's outstanding
(ii) Each Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. The outstanding capital stock of each such Subsidiary has of the Subsidiaries have been duly authorized and validly issued, is are fully paid and nonassessable non-assessable and is owned, directly or indirectly, are owned by the CompanyCompany or a Subsidiary; and, to the best of such counsel's knowledge, the outstanding shares of capital stock of each of the Subsidiaries is owned free and clear of all liens, encumbrances and security interests, other than security interests specifically disclosed in the Prospectus. To the knowledge of such counsel, and no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into any shares of capital stock or of ownership interests in any Subsidiary the Subsidiaries are outstanding.
(iiiii) All The Company has authorized and outstanding capital stock as set forth under the caption "Capitalization" in the Prospectus; the authorized shares of its Common Stock have been duly authorized; the outstanding shares of its Common Stock, including the Shares to be sold by the Selling Shareholder, have been duly authorized and validly issued and are fully paid and non-assessable; all of the issued and outstanding Shares conform to the description thereof contained in the Prospectus; the certificates for the Shares comply with the requirements of Georgia law; the shares of Common Securities of Stock, including the Trust are owned Option Shares, if any, to be sold by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(iv) The Trust Agreement, the Indenture, the Guarantee, the Form T1 Statement of Eligibility of Wilmington Trust Company pursuant to act as trustee under the Indenture, the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Trust Agreement, and the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Guarantee this Agreement have been duly qualified under the Trust Indenture Act.
(v) The Junior Subordinated Debentures are in the form contemplated by the Indenture, have been duly authorized, executed authorized - 11 - 12 and delivered by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture and delivered against payment therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(vi) The Junior Subordinated Debentures are subordinate and junior in right of payment to all "Senior and Subordinated Debt" (as defined in the Indenture) of the Company.
(vii) Under current law, the Trust will be classified validly issued, fully paid and non-assessable when issued and paid for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation; accordingly, for United States federal income tax purposes each beneficial owner of Preferred Securities will be treated as owning an undivided
(viii) For federal income tax purposes, (a) the Junior Subordinated Debentures will constitute indebtedness of the Company and (b) the interest on the Junior Subordinated Debentures will be deductible by the Company on an economic accrual basis in accordance with Section 163(e) of the Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.1637.
(ix) To the best of such counsel's knowledge and information after due inquiry, the Trust is not required to be authorized to do business in any other jurisdiction, except where the failure to be so authorized would not have a material adverse effect on the Trust's condition (financial or otherwise), earnings, business, prospects, assets, results of operations or properties taken as a whole and the Trust is not a party to or otherwise bound by any material agreement other than those described in the Prospectus.
(x) The Trust Agreement has been duly executed and delivered by the Administrative Trustees.
(xi) To the best of such counsel's knowledge and information after due inquiry, the Offerors are not in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or any other instrument of which either of them is a party or by which either of them may be bound, or to which any of the property or assets of the Offerors is subject.
(xii) The Company has full corporate power and authority and the Trust has full trust power and authority to enter into this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and to issue the Junior Subordinated Debentures or the Common Securities and Preferred Securities, as the case may be, and to effect the transactions contemplated by this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement ; and the Expense Agreement, as applicable, and each no preemptive rights of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement have been duly authorized, executed and delivered by the Company and the Trust, as applicable, and constitutes a valid, legal and binding obligation shareholders exist with respect to any of the Company Shares or the issue and the Trust, as applicable, enforceable in accordance with its terms (except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity). The execution, delivery and performance of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, thesale thereof.
(xiiiiii) The Registration Statement has become effective under the Act and, to the best of the knowledge of such counsel, no stop order proceedings with respect thereto have been instituted or are pending or threatened by under the CommissionAct.
(xiviv) The Registration Statement, all Preliminary Prospectuses, the Prospectus and each amendment or supplement, supplement thereto comply as to form in all material respects with the requirements of the Act and the applicable rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements, schedules and other financial and statistical information included therein).
(v) The statements under the captions "Business - Government Regulation," "Management Employment Agreements," "Management - Employee Benefits Plans," "Description of Capital Stock" and related financial schedules contained "Shares Eligible for Future Sale" in the financial statementsProspectus, Registration Statementinsofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and correctly present the Prospectus information called for with respect to such documents and each amendment or supplement thereto)matters.
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Preferred Securities Shares on the First Closing Date and the Option Preferred Securities Shares, if any, on the Second Option Closing Date are subject to the condition that all representations and warranties of the Offerors contained herein are true and correctaccuracy, at and as of the First Closing Date or the Second Option Closing Date, as the case may be, of the representations and warranties of the condition that each Offeror shall have performed all Company contained herein, and to the performance by the Company of its covenants and obligations hereunder and to the following additional conditions:
(a) The Prospectus Registration Statement and all post-effective amendments thereto shall have become effective and any and all filings required by Rule 424 and Rule 430A of the Rules and Regulations shall have been filed with made, and any request of the Commission pursuant for additional information (to Rule 424(bbe included in the Registration Statement or otherwise) within shall have been disclosed to the applicable time period prescribed for such filing by the rules Representatives and regulations under the Act and in accordance complied with Section 4(a) hereof; no to their reasonable satisfaction. No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened taken or, to the knowledge of the Company, shall be contemplated by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriters.
(b1) The Underwriters Representatives shall have received on the First Closing Date or the Second Option Closing Date, as the case may be, the opinion of Jonex Powell, Goldstein, Frazxx & Xellxx, X.C., Denver, ColoradoXurpxx XXX, counsel for the OfferorsCompany, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters, Underwriters to the effect that:
(i) The Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own, and hold under lease, its properties and conduct its business as described in the Prospectus. Based upon appropriate certificates of public officials (which shall be furnished to the Representatives with the opinion), each of the Subsidiaries listed on Schedule IV, other than Mediacom Inc. and its subsidiaries (the "U.S. Subsidiaries"), has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, incorporation with corporate power and authority to own or lease own, and hold under lease, its properties and conduct its business as described in the Prospectus. All .
(ii) Based upon appropriate certificates of public officials (which shall be furnished to the Representatives with the opinion), each of the issued Company and the U.S. Subsidiaries is duly qualified to transact business as a foreign corporation and is in good standing under the laws of each of the jurisdictions in which the conduct of its business requires such qualification, except to the extent that the failure to qualify would not, in the aggregate, reasonably be expected to have a material adverse effect on the business or financial condition of the Company and the Subsidiaries, taken as a whole (a "Material Adverse Effect").
(iii) The outstanding shares of the capital stock of the Company U.S. Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable. The holders non-assessable, except that such counsel need not express an opinion with respect to the shares of Decade Communications Group, Inc. and Bench Advertising Company of Colorado, Inc.. To the Company's outstanding
(ii) Each Subsidiary best knowledge of such counsel, the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws shares of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. The outstanding capital stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned, directly or indirectly, the U.S. Subsidiaries are owned by the Company, Company or one of the other U.S. Subsidiaries free and clear of all liens, encumbrances and security interests, interests (other than security interests specifically disclosed liens granted by the Company in connection with the ProspectusSenior Credit Facility). To the knowledge of such counsel, no No options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into shares of capital stock or ownership interests in any Subsidiary of the U.S. Subsidiaries are outstanding.
(iii) All of the issued and outstanding Common Securities of the Trust are owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(iv) The Trust Agreement, the Indenture, the Guarantee, the Form T1 Statement of Eligibility of Wilmington Trust Company to act has authorized and outstanding capital stock as trustee set forth under the Indenture, caption "Capitalization" in the Form T1 Statement Prospectus; the authorized shares of Eligibility of Wilmington Trust Company to act as trustee under the Trust Agreement, and the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Guarantee Agreement its Common Stock have been duly qualified under authorized; the Trust Indenture Actoutstanding shares of its Common Stock, including the Shares to be sold by the Selling Shareholders, have been duly authorized and validly issued and are fully paid and non-assessable; all of the Shares conform in all material respects to the description thereof contained in the Prospectus; and the certificates for the Shares conform to the requirements of the Delaware General Corporation Law.
(v) The Junior Subordinated Debentures are in Shares, including the form contemplated Option Shares, if any, to be sold by the Indenture, Company pursuant to this Agreement have been duly authorizedauthorized and will be validly issued, executed fully paid and delivered non-assessable when issued and paid for as contemplated by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture this Agreement; and delivered against payment therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the no statutory preemptive rights of creditors generally and subject stockholders or, to general principles of equity.
(vi) The Junior Subordinated Debentures are subordinate and junior in right of payment to all "Senior and Subordinated Debt" (as defined in the Indenture) of the Company.
(vii) Under current law, the Trust will be classified for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation; accordingly, for United States federal income tax purposes each beneficial owner of Preferred Securities will be treated as owning an undivided
(viii) For federal income tax purposes, (a) the Junior Subordinated Debentures will constitute indebtedness of the Company and (b) the interest on the Junior Subordinated Debentures will be deductible by the Company on an economic accrual basis in accordance with Section 163(e) of the Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.1637.
(ix) To the best of such counsel's knowledge and information after due inquiryknowledge, the Trust is not required to be authorized to do business in any other jurisdiction, except where preemptive rights exist with respect to any of the failure to be so authorized would not have a material adverse effect on Shares or the Trust's condition (financial or otherwise), earnings, business, prospects, assets, results of operations or properties taken as a whole issue and the Trust is not a party to or otherwise bound by any material agreement other than those described in the Prospectussale thereof.
(x) The Trust Agreement has been duly executed and delivered by the Administrative Trustees.
(xi) To the best of such counsel's knowledge and information after due inquiry, the Offerors are not in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or any other instrument of which either of them is a party or by which either of them may be bound, or to which any of the property or assets of the Offerors is subject.
(xii) The Company has full corporate power and authority and the Trust has full trust power and authority to enter into this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and to issue the Junior Subordinated Debentures or the Common Securities and Preferred Securities, as the case may be, and to effect the transactions contemplated by this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and each of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement have been duly authorized, executed and delivered by the Company and the Trust, as applicable, and constitutes a valid, legal and binding obligation of the Company and the Trust, as applicable, enforceable in accordance with its terms (except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity). The execution, delivery and performance of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, the
(xiiivi) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order proceedings with respect thereto have been instituted or are pending or threatened by under the CommissionAct.
(xivvii) The Registration Statement, all Preliminary Prospectuses, the Prospectus and each amendment or supplement, supplement thereto filed with the Commission on or prior to the date of such opinion comply as to form in all material respects with the requirements of the Act and the applicable rules and regulations thereunder in effect as of the time of such filing (except that such counsel need express no opinion as to the financial statements, schedules and other financial information included therein).
(ix) The conditions for the use of Form S-3 as the proper form for the Registration Statement have been satisfied.
(x) The statements under the captions "Prospectus Summary -- Recent Developments," "Risk Factors -- Restrictions on Tobacco Advertising," "Risk Factors -- Regulation of Outdoor Advertising," "Management's Discussion and related financial schedules contained Analysis of Results of Operations and Financial Condition -- Liquidity and Capital Resources," "Description of Capital Stock" and "Description of Indebtedness and Other Commitments" in the Prospectus insofar as such statements are descriptions of documents referred to therein are fair summaries of the documents so summarized, and insofar as such statements are summaries of matters of law, such summaries present accurately in all material respects the information called for with respect to such matters of law.
(xi) Such counsel does not know of any contracts or documents required to be filed as exhibits to or incorporated by reference in the Registration Statement or described in the Registration Statement or the Prospectus which are not so filed, incorporated by reference or described as required.
(xii) Such counsel knows of no material legal proceedings or regulatory or other claims pending or threatened against the Company, the U.S. Subsidiaries Van Xxxxxx xx NAC of a character required to be reflected in the Prospectus that are not set forth in the Prospectus.
(xiii) The Pending Acquisition Agreements have been duly authorized, executed and delivered by the Company.
(xiv) The execution and delivery of this Agreement and the consummation of the transactions herein contemplated, and the execution and delivery of the Pending Acquisition Agreements and the consummation of the transaction therein contemplated, do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the Certificate of Incorporation or By-Laws of the Company, or any agreement or instrument filed as an exhibit to the Registration Statement or otherwise identified to such counsel as being material to the Company and the Subsidiaries in an appropriate certificate of the Company, to which the Company or any of the U.S. Subsidiaries is a party or by which the Company or any of the U.S. Subsidiaries may be bound
(xv) This Agreement has been duly authorized, executed and delivered by the Company.
(xvi) Except for approvals, consents, orders, authorizations, designations, declarations or filings which have been waived, or which have been obtained or made, no approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body is necessary in connection with the execution and delivery by the Company of this Agreement and the consummation by the Company of the transactions herein contemplated (other than as may be required by the NASD or as required by State securities and Blue Sky laws as to which such counsel need express no opinion).
(xvii) The Company is not, and will not become as a result of the consummation of the transactions contemplated by this Agreement, an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and has not been an "investment company" at any time since 1988. In rendering such opinion, Powell, Goldstein, Frazxx & Xurpxx XXX may rely as to matters governed by the laws of states other than Georgia or Federal laws on local counsel in such jurisdictions provided that in each case Powell, Goldstein, Frazxx & Xurpxx XXX shall state that they believe that they and the Underwriters are justified in relying on such other counsel and such other counsel's opinion is also delivered to the Underwriters. In addition to the matters set forth above, such opinion shall also include a statement to the effect that nothing has come to the attention of such counsel which causes them to believe that (A) the Registration Statement, as of the time it became effective under the Act (but after giving effect to any modifications incorporated therein pursuant to Rule 430A under the Act) and as of the Closing Date or the Option Closing Date, as the case may be, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) the Prospectus or any supplement thereto, on the date it was filed pursuant to Rules and Regulations and as of the Closing Date or the Option Closing Date, as the case may be, 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 (except that such counsel need express no view as to financial statements, Registration Statementschedules and other financial information included or incorporated by reference therein). With respect to such statement, Powell, Goldstein, Frazxx & Xurpxx XXX may state that their belief is based upon the Prospectus procedures set forth therein, but is without independent check and each amendment or supplement thereto)verification.
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Preferred Securities on the First Closing Date and the Option Preferred Securities on the Second Closing Date are subject to the condition that all representations and warranties of the Offerors contained herein are true and correct, at and as of the First Closing Date or the Second Closing Date, as the case may be, and the condition that each Offeror shall have performed all of its covenants and obligations hereunder and to the following additional conditions:that
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriters.
(b) The Underwriters shall have received on the First Closing Date or the Second Closing Date, as the case may be, the opinion of Jonex & Xellxx, X.C., DenverXxnver, Colorado, counsel for the Offerors, dated the Closing Date, addressed to the Underwriters, 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 jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. All of the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. The holders of the Company's outstandingoutstanding securities are not entitled to any preemptive or other rights to subscribe for the Junior Subordinated Debentures or the Preferred Securities under the Company's Articles of Incorporation or Bylaws and, to the knowledge of such counsel, no such rights exist under any other agreement or arrangement. The Company has authorized and outstanding capital stock as described in the Prospectus.
(ii) Each Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. The outstanding capital stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned, directly or indirectly, by the Company, free and clear of all liens, encumbrances and security interests, other than security interests specifically disclosed in the Prospectus. To the knowledge of such counsel, no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into capital stock or ownership interests in any Subsidiary are outstanding.or
(iii) All of the issued and outstanding Common Securities of the Trust are owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(iv) The Trust Agreement, the Indenture, the Guarantee, the Form T1 T-1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Indenture, the Form T1 T-1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Trust Agreement, and the Form T1 T-1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Guarantee Agreement have been duly qualified under the Trust Indenture Act.
(v) The Junior Subordinated Debentures are in the form contemplated by the Indenture, have been duly authorized, executed and delivered by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture and delivered against payment therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(vi) The Junior Subordinated Debentures are subordinate and junior in right of payment to all "Senior and Subordinated Debt" (as defined in the Indenture) of the Company.
(vii) Under current law, the Trust will be classified for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation; accordingly, for United States federal income tax purposes each beneficial owner of Preferred Securities will be treated as owning an undividedundivided beneficial interest in the Junior Subordinated Debentures, and stated interest on the Junior Subordinated Debentures generally will be included in income by a holder of Preferred Securities at the time such interest income is paid or accrued in accordance with such holder's regular method of tax accounting.
(viii) For federal income tax purposes, (a) the Junior Subordinated Debentures will constitute indebtedness of the Company and (b) the interest on the Junior Subordinated Debentures will be deductible by the Company on an economic accrual basis in accordance with Section 163(e) of the Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.1637.accordance
(ix) To the best of such counsel's knowledge and information after due inquiry, the Trust is not required to be authorized to do business in any other jurisdiction, except where the failure to be so authorized would not have a material adverse effect on the Trust's condition (financial or otherwise), earnings, business, prospects, assets, results of operations or properties taken as a whole and the Trust is not a party to or otherwise bound by any material agreement other than those described in the Prospectus.
(x) The Trust Agreement has been duly executed and delivered by the Administrative Trustees.
(xi) To the best of such counsel's knowledge and information after due inquiry, the Offerors are not in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or any other instrument of which either of them is a party or by which either of them may be bound, or to which any of the property or assets of the Offerors is subject.
(xii) The Company has full corporate power and authority and the Trust has full trust power and authority to enter into this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and to issue the Junior Subordinated Debentures or the Common Securities and Preferred Securities, as the case may be, and to effect the transactions contemplated by this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and each of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement have been duly authorized, executed and delivered by the Company and the Trust, as applicable, and constitutes a valid, legal and binding obligation of the Company and the Trust, as applicable, enforceable in accordance with its terms (except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity). The execution, delivery and performance of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, thethe Preferred Securities, the Common Securities, the Junior Subordinated Debentures and the Expense Agreement and the consummation
(xiii) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order proceedings with respect thereto have been instituted or are pending or threatened by the Commission.
(xiv) The Registration Statement, the Prospectus and each amendment or supplement, thereto comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements and related financial schedules contained in the financial statements, Registration Statement, the Prospectus and each amendment or supplement thereto).
(xv) The statements (A) in the Prospectus under the captions "Risk Factors" -- Ranking of the Company's Obligations Under the Junior Subordinated Debentures and the Guarantee," and -- Option to Extend Interest Payment Period; Tax Consequences; Market Price Consequences;" and "Certain Federal Income Tax Consequences" and (B) in the Registration Statement in Item 24, insofar as such statements constitute a summary of matters of law, are accurate summaries and fairly present the information called for with respect to such matters.
(xvi) Such counsel does not know of any contracts, agreements, documents or instruments required to be filed as exhibits to the Registration Statement or described in the Registration Statement or the Prospectus which are not so filed or described as required; and insofar as any statements in the Registration Statement or the Prospectus constitute summaries of any contract, agreement, document or instrument to which the Trust, the Company or any Subsidiary is a party, such statements are accurate summaries and fairly present the information called for with respect to such matters.
(xvii) Such counsel knows of no legal or governmental proceeding, pending or threatened, before any court or administrative body or regulatory agency, to which the Trust, the Company or any of the Subsidiaries is a party or to which any of the properties of the Trust, the Company or any of the Subsidiaries is subject that are required to be described in the Registration Statement or Prospectus and are not so described, or statutes or regulations that are required to be described in the Registration Statement or the Prospectus that are not so described (other than any banking laws (as defined below), as to which counsel need express no opinion).
(xviii) Neither the Company nor the Trust is, and immediately upon completion of the sale of Preferred Securities contemplated hereby, neither the Company nor the Trust will be, an "investment company" or a company "controlled" by an investment company under the Investment Company Act of 1940, as amended.
(xix) To the best of such counsel's knowledge, neither the Company nor any of the Subsidiaries is in violation of its respective charter or bylaws. Such counsel shall also state that on the basis of such counsel's review and participation in conferences in connection with the preparation of the Registration Statement and the Prospectus, such counsel has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Offerors prior to the Closing Date, as the case may be (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) 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 or that, as of its date, the Prospectus or any further amendment or supplement thereto made by the Offerors prior to the Closing Date, (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading or that, as of the Closing Date, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Offerors prior to the Closing Date (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. In rendering the above opinions, counsel may rely (i) as to matters of law other than Colorado and federal law, upon the opinion or opinions of local counsel provided that the extent of such reliance is specified in such opinion and that such counsel shall state that such opinion or opinions of local counsel are satisfactory to them and they believe they and you are justified in relying thereon and (ii) as to matters of fact, upon the representations of the Trust and the Company contained in this Agreement and upon certificates of trustees or officers of the Trust, the Company and of public officials.
(c) The Underwriters shall have received on the Closing Date the opinion of Slivxx Xxxixxxx Xxxexx & X'Orsto, P.C., banking counsel for the Company, dated the Closing Date, addressed to the Underwriters, to the effect that:
(i) The Bank has been duly chartered to conduct the business of banking in its state of domicile and the Company has all necessary power and authority to own the Bank. The Company and the Bank have all necessary consents and approvals under applicable federal and state laws and regulations relating to banks and bank holding companies ("banking laws") to own their respective assets and carry on their respective businesses as currently conducted.
(iii) Such counsel knows of no legal or governmental proceeding, pending or threatened, before any court or administrative body or regulatory agency, to which the Company or any of the Subsidiaries is a party or to which any of the properties of the Company or any of the Subsidiaries is subject that are required to be described in the Registration Statement or Prospectus and are not so described, or statutes or regulations that are required to be described in the Registration Statement or the Prospectus that are not so described.
(iv) The execution and delivery of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement and the consummation of the transactions herein and therein contemplated do not and will not conflict with or result in a violation of or default under any banking laws, or any permit, judgment, decree or order known to such counsel, or any lease, contract, indenture, mortgage, loan agreement or other agreement or other instrument or obligation known to such counsel to which the Company or the Bank is a party or by which the Company or the Banks or any of their respective properties is bound.
(v) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body under banking laws is necessary in connection with the execution and delivery of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement and the consummation of the transactions herein and therein contemplated, except such as have been obtained or made, specifying the same.
(vi) The proceeds from the sale of the Preferred Securities will constitute "tier 1" capital (as defined in 12 C.F.R. Part 325), subject to applicable regulatory limitations on the amount thereof that can be included in tier 1 capital.]
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Preferred Securities on the First Closing Date and the Option Preferred Securities on the Second Closing Date are subject to the condition that all representations and warranties of the Offerors contained herein are true and correct, at and as of the First Closing Date or the Second Closing Date, as the case may be, and the condition that each Offeror shall have performed all of its covenants and obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriters.
(b) The Underwriters shall have received on the First Closing Date or the Second Closing Date, as the case may be, the opinion of Jonex Veddxx, Xxicx, Xxufxxx & XellxxXammxxxx, X.C., Denver, Colorado, counsel xxunsel for the Offerors, dated the Closing Date, addressed to the Underwriters, to the effect that:
(i) The (A) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction State of its incorporation, Delaware with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. All of the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. The holders of the Company's outstanding
(ii) Each Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. The outstanding capital stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned, directly or indirectly, by the Company, free and clear of all liens, encumbrances and security interests, other than security interests specifically disclosed in the Prospectus. To the knowledge of such counsel, no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into capital stock or ownership interests in any Subsidiary are outstanding.
(iii) All of the issued and outstanding Common Securities of the Trust are owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(iv) The Trust Agreement, the Indenture, the Guarantee, the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Indenture, the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Trust Agreement, and the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Guarantee Agreement have been duly qualified under the Trust Indenture Act.
(v) The Junior Subordinated Debentures are in the form contemplated by the Indenture, have been duly authorized, executed and delivered by the Company ; and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture and delivered against payment therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(vi) The Junior Subordinated Debentures are subordinate and junior in right of payment to all "Senior and Subordinated Debt" (as defined in the Indenture) of the Company.
(vii) Under current law, the Trust will be classified for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation; accordingly, for United States federal income tax purposes each beneficial owner of Preferred Securities will be treated as owning an undivided
(viii) For federal income tax purposes, (a) the Junior Subordinated Debentures will constitute indebtedness of the Company and (b) the interest on the Junior Subordinated Debentures will be deductible by the Company on an economic accrual basis in accordance with Section 163(e) of the Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.1637.
(ix) To the best of such counsel's knowledge and information after due inquiry, the Trust Company is not required to be authorized duly qualified to do business as a foreign corporation under the corporation law of, and is in any other jurisdictiongood standing as such in, every jurisdiction where such qualification is required except where the failure so to be so authorized qualify would not have a material adverse effect on upon the Trust's condition (financial or otherwise), earnings, business, prospects, assets, ) or results of operations or properties taken as a whole and the Trust is not a party to or otherwise bound by any material agreement other than those described in the Prospectus.
(x) The Trust Agreement has been duly executed and delivered by the Administrative Trustees.
(xi) To the best of such counsel's knowledge and information after due inquiry, the Offerors are not in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or any other instrument of which either of them is a party or by which either of them may be bound, or to which any of the property or assets of the Offerors is subject.
(xii) The Company has full corporate power and authority and the Trust has full trust power and authority to enter into this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and to issue the Junior Subordinated Debentures or the Common Securities and Preferred Securities, as the case may be, and to effect the transactions contemplated by this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and each of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement have been duly authorized, executed and delivered by the Company and the Trust, as applicable, and constitutes a valid, legal and binding obligation of the Company and the Trust, its subsidiaries taken as applicable, enforceable in accordance with its terms (except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity). The execution, delivery and performance of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, the
(xiii) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order proceedings with respect thereto have been instituted or are pending or threatened by the Commission.
(xiv) The Registration Statement, the Prospectus and each amendment or supplement, thereto comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements and related financial schedules contained in the financial statements, Registration Statement, the Prospectus and each amendment or supplement thereto).a whole;
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Preferred Securities on the First Closing Date and the Option Preferred Securities on the Second Closing Date are subject to the condition that all accuracy, as of the Closing Date, of the representations and warranties of the Offerors Company contained herein are true and correct, at and as of the First Closing Date or the Second Closing Date, as the case may beherein, and to the condition that each Offeror shall have performed all performance by the Company of its covenants and obligations hereunder and to the following additional conditions:
(ai) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; no No stop order suspending the effectiveness of either of the Registration StatementStatements, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened taken or, to the knowledge of the Company, shall be contemplated by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Underwriters.
(ii) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of (a) any intended or potential downgrading or (b) any review or possible change that does not indicate an improvement in the rating, if any, accorded any securities of or guaranteed by the Company by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Act.
(iii) The Underwriters Representatives shall have received on the First Closing Date or the Second Closing Date, as the case may be, the opinion of Jonex Shuxxxxx, Xoop & XellxxKenxxxxx, X.C., Denver, ColoradoXLP, counsel for the OfferorsCompany, dated the Closing Date, Date and addressed to the Representatives, as representatives of the several Underwriters, to the effect that:
(ia) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction State of its incorporationDelaware, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. All .
(b) The Company is duly qualified to transact business in all jurisdictions in which the conduct of its business requires such qualification, and in which the issued failure to qualify would constitute a Material Adverse Effect.
(c) The Company has authorized and outstanding capital stock as set forth under the caption "Capitalization" in the Prospectus; the authorized shares of its Common Stock have been duly authorized; the outstanding shares of the capital stock of the Company its Common Stock have been duly authorized and validly issued and are fully paid and nonassessable. The holders of the Company's outstanding
(ii) Each Subsidiary of the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. The outstanding capital stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and nonassessable and is owned, directly or indirectly, by the Company, free and clear of all liens, encumbrances and security interests, other than security interests specifically disclosed in the Prospectus. To the knowledge of such counsel, no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into capital stock or ownership interests in any Subsidiary are outstanding.
(iii) All of the issued and outstanding Common Securities of the Trust are owned by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(iv) The Trust Agreement, the Indenture, the Guarantee, the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Indenture, the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Trust Agreement, and the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Guarantee Agreement have been duly qualified under the Trust Indenture Act.
(v) The Junior Subordinated Debentures are in the form contemplated by the Indenture, have been duly authorized, executed and delivered by the Company and, when authenticated by the Indenture Trustee in the manner provided for in the Indenture and delivered against payment therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity.
(vi) The Junior Subordinated Debentures are subordinate and junior in right of payment to all "Senior and Subordinated Debt" (as defined in the Indenture) of the Company.
(vii) Under current law, the Trust will be classified for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation; accordingly, for United States federal income tax purposes each beneficial owner of Preferred Securities will be treated as owning an undivided
(viii) For federal income tax purposes, (a) the Junior Subordinated Debentures will constitute indebtedness of the Company and (b) the interest on the Junior Subordinated Debentures will be deductible by the Company on an economic accrual basis in accordance with Section 163(e) of the Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.1637.
(ix) To the best of such counsel's knowledge and information after due inquiry, the Trust is not required to be authorized to do business in any other jurisdiction, except where the failure to be so authorized would not have a material adverse effect on the Trust's condition (financial or otherwise), earnings, business, prospects, assets, results of operations or properties taken as a whole and the Trust is not a party to or otherwise bound by any material agreement other than those described in the Prospectus.
(x) The Trust Agreement has been duly executed and delivered by the Administrative Trustees.
(xi) To the best of such counsel's knowledge and information after due inquiry, the Offerors are not in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or any other instrument of which either of them is a party or by which either of them may be bound, or to which any of the property or assets of the Offerors is subject.
(xii) The Company has full corporate power and authority and the Trust has full trust power and authority to enter into this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and to issue the Junior Subordinated Debentures or the Common Securities and Preferred Securities, as the case may be, and to effect the transactions contemplated by this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and each of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement have been duly authorized, executed and delivered by the Company and the Trust, as applicable, and constitutes a valid, legal and binding obligation of the Company and the Trust, as applicable, enforceable in accordance with its terms (except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity). The execution, delivery and performance of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, the
(xiiid) The Registration Statement has Statements have become effective under the Act and, to the knowledge of such counsel, 's knowledge no stop order proceedings with respect thereto have been instituted or are pending or threatened by under the CommissionAct.
(xive) The Registration StatementStatements, the Prospectus and each amendment or supplement, supplement thereto and documents incorporated by reference therein comply as to form in all material respects with the requirements of the Act, the Exchange Act or the Trust Indenture Act, as applicable, and the applicable rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements, schedules and other financial or statistical information included or incorporated by reference therein).
(f) The statements and related financial schedules contained in the Prospectus under the caption "Description of Notes" and "Description of Debt Securities," insofar as such statements constitute a summary of documents referred to therein or matters of law, are accurate summaries and fairly and correctly present in all material respects the information called for with respect to such documents and matters.
(g) The statements under the caption "Certain Government Regulations" in the Company's Annual Report on Form 10-K, and any amendments thereto, for the fiscal year ended December 31, 2000 as to matters of law stated therein, have been reviewed by such counsel and constitute fair summaries of the matters described therein which are material to the business or condition (financial statements, or otherwise) of the Company.
(h) Such counsel does not know of any contracts or documents required to be filed as exhibits to or incorporated by reference in either of the Registration Statement, Statements or described in either of the Registration Statements or the Prospectus and each amendment or supplement thereto).which
Appears in 1 contract
Conditions of Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Firm Preferred Securities Shares on the First Closing Date and the Option Preferred Securities Shares, if any, on the Second Option Closing Date Date, are subject to the condition that all representations and warranties of the Offerors Company contained herein are true and correct, at and as of the First Closing Date or the Second Option Closing Date, as the case may be, and the condition that each Offeror the Company shall have performed all of its covenants and obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the UnderwritersRepresentatives.
(b) The Underwriters Representatives shall have received on the First Closing Date or the Second Option Closing Date, as the case may be, the opinion of Jonex Xxxxxxxxx & XellxxXxxxxx, X.C., Denver, ColoradoP.L.L.P., counsel for the OfferorsCompany, dated the Closing Date or the Option Closing Date, as the case may be, addressed to the Underwriters, to the effect that:
: (i) The Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the jurisdiction State of its incorporation, Minnesota with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. All of the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. The holders of the Company's outstanding.
(ii) Each Subsidiary subsidiary of the Company has been duly incorporated organized and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus. The outstanding shares of capital stock of each such Subsidiary has subsidiary have been duly authorized and validly issued, is are fully paid and nonassessable and is are owned, directly or indirectly, by the Company, free and clear of all liens, encumbrances and security interests, other than security interests specifically disclosed in the Prospectus. To the knowledge of such counsel, no options, warrants or other rights to purchase, agreements or other obligations to issue or other rights to convert any obligations into any shares of capital stock or ownership interests in any Subsidiary each such subsidiary are outstanding.
(iii) All The Company has authorized and outstanding capital stock as described in the Prospectus. The outstanding shares of the Company's capital stock have been duly authorized and validly issued and outstanding Common Securities are fully paid and nonassessable. The form of certificate for the Trust are owned Shares is in due and proper form and complies with all applicable statutory requirements. The Shares to be issued and sold by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equitable right.
(iv) The Trust Agreement, the Indenture, the Guarantee, the Form T1 Statement of Eligibility of Wilmington Trust Company pursuant to act as trustee under the Indenture, the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Trust Agreement, and the Form T1 Statement of Eligibility of Wilmington Trust Company to act as trustee under the Guarantee this Agreement have been duly qualified under the Trust Indenture Act.
(v) The Junior Subordinated Debentures are in the form contemplated by the Indenture, have been duly authorized, executed and delivered by the Company authorized and, when authenticated by the Indenture Trustee in the manner provided issued and paid for in the Indenture and delivered against payment thereforas contemplated herein, will constitute valid be validly issued, fully paid and binding obligations nonassessable. No preemptive or, to the knowledge of such counsel, other similar subscription rights of shareholders of the Company, enforceable against the Company in accordance with their termsor of holders of warrants, except options, convertible securities or other rights to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights acquire shares of creditors generally and subject to general principles of equity.
(vi) The Junior Subordinated Debentures are subordinate and junior in right of payment to all "Senior and Subordinated Debt" (as defined in the Indenture) capital stock of the Company.
(vii) Under current law, the Trust will be classified for United States federal income tax purposes as a grantor trust and not as an association taxable as a corporation; accordingly, for United States federal income tax purposes each beneficial owner of Preferred Securities will be treated as owning an undivided
(viii) For federal income tax purposes, (a) the Junior Subordinated Debentures will constitute indebtedness exist with respect to any of the Company Shares or the issue and (b) the interest on the Junior Subordinated Debentures will be deductible by the Company on an economic accrual basis in accordance with Section 163(e) of the Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.1637.
(ix) sale thereof. To the best knowledge of such counsel, no rights to register outstanding shares of the Company's knowledge and information after due inquirycapital stock, or shares issuable upon the Trust is exercise of outstanding warrants, options, convertible securities or other rights to acquire shares of such capital stock, exist which have not required been validly exercised or waived with respect to be authorized the Registration Statement. The capital stock of the Company, including the Shares, conforms in all material respects to do business in any other jurisdiction, except where the failure to be so authorized would not have a material adverse effect on the Trust's condition (financial or otherwise), earnings, business, prospects, assets, results of operations or properties taken as a whole and the Trust is not a party to or otherwise bound by any material agreement other than those described description thereof contained in the Prospectus.
(x) The Trust Agreement has been duly executed and delivered by the Administrative Trustees.
(xi) To the best of such counsel's knowledge and information after due inquiry, the Offerors are not in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or any other instrument of which either of them is a party or by which either of them may be bound, or to which any of the property or assets of the Offerors is subject.
(xii) The Company has full corporate power and authority and the Trust has full trust power and authority to enter into this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and to issue the Junior Subordinated Debentures or the Common Securities and Preferred Securities, as the case may be, and to effect the transactions contemplated by this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and each of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement have been duly authorized, executed and delivered by the Company and the Trust, as applicable, and constitutes a valid, legal and binding obligation of the Company and the Trust, as applicable, enforceable in accordance with its terms (except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity). The execution, delivery and performance of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement, the
(xiiiiv) The Registration Statement has become effective under the Act and, to the knowledge of such counsel, no stop order proceedings with respect thereto have been instituted or are pending or threatened by the Commission.
(xivv) The Registration Statement, the Prospectus and each amendment or supplement, supplement thereto comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements and related schedules included therein). The documents incorporated by reference in Prospectus or any further amendment or supplement thereto made by the Company prior to the Closing Date or the Option Closing Date, as the case may be,(other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; such counsel has no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained in the financial statementscase of registration statement which became effective under the Act, 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 or, in the case of other documents which were filed under the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made when such documents were so filed, not misleading.
(vi) The statements (A) in the Prospectus under the caption "Description of Capital Stock" and (B) in the Registration Statement in Item 15 insofar as such statements constitute a summary of matters of law, are accurate summaries and fairly present the information called for with respect to such matters.
(vii) Such counsel does not know of any contracts, agreements, documents or instruments required to be filed as exhibits to the Registration Statement, incorporated by reference into the Prospectus, or described in the Registration Statement or the Prospectus which are not so filed, incorporated by reference or described as required; and each insofar as any statements in the Registration Statement or the Prospectus constitute summaries of any contract, agreement, document or instrument to which the Company is a party, such statements are accurate summaries and fairly present the information called for with respect to such matters.
(viii) Such counsel knows of no legal or governmental proceeding, pending or threatened, before any court or administrative body or regulatory agency, to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement or Prospectus and are not so described, or statutes or regulations that are required to be described in the Registration Statement or the Prospectus that are not so described.
(ix) The execution and delivery of this Agreement and the consummation of the transactions herein contemplated do not and will not conflict with or result in a violation of or default under the Articles of Incorporation or Bylaws of the Company or any of its subsidiaries, or under any statute, permit, judgment, decree, order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, or under any lease, contract, indenture, mortgage, loan agreement or other agreement or other instrument or obligation known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any property or assets of the Company or any of its subsidiaries is subject, except such agreements, instruments or obligations with respect to which valid consents or waivers have been obtained by the Company or any of its subsidiaries.
(x) The Company has the corporate power and authority to enter into this Agreement and to authorize, issue and sell the Shares as contemplated hereby. This Agreement has been duly and validly authorized, executed and delivered by the Company.
(xi) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body is necessary in connection with the execution and delivery of this Agreement and the consummation of the transactions herein contemplated (other than as may be required by state securities and blue sky laws, as to which such counsel need express no opinion) except such as have been obtained or made, specifying the same.
(xii) The Company is not, and immediately upon completion of the sale of Shares contemplated hereby will not be, required to register as an "investment company" under the Investment Company Act of 1940, as amended.
(xiii) Such counsel has no reason to believe that, as of its effective date, the Registration Statement or any further amendment thereto made by the Company prior to the Closing Date or the Option Closing Date, as the case may be, (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) 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 or that, as of its date, the Prospectus or any further amendment or supplement thereto)thereto made by the Company prior to the Closing Date or the Option Closing Date, as the case may be, (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading or that, as of the Closing Date or the Option Closing Date, as the case may be, either the Registration Statement or the Prospectus or any further amendment or supplement thereto made by the Company prior to the Closing Date or the Option Closing Date, as the case may be, (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances in which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed.
Appears in 1 contract
