Conditions of the Obligations of the Agent. Your obligation to solicit offers to purchase Securities as agent of the Company in connection with any offering of Securities and your obligation to purchase Securities as principal pursuant to any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Securities, at the time of such solicitation and at each Time of Sale and, in the case of your obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified below: (a) Prior to such solicitation or purchase, as the case may be: (i) there shall not have occurred any event or occurrence that results, or would result in, a Material Adverse Effect from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Prospectus or Time of Sale Information and that, in your reasonable judgment, is material and adverse and that makes it, in your reasonable judgment, impracticable or inadvisable to market the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information; (ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your reasonable judgment, impracticable or inadvisable to market the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information; (iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 424 or Rule 433 under the Securities Act); and (iv) since the date on which the Company has filed with the Commission the Company’s most recent Annual Report on Form 10-K, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) of the Exchange Act; except, in each case described in paragraph (i), (ii) or (iv) above, as disclosed to you in writing by the Company prior to such solicitation or, in the case of a purchase of Securities, before the offer to purchase such Securities was made. (b) If called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received: (i) The opinion, dated as of such date, of the Company’s counsel (which may be internal counsel) in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit D. (ii) The opinion, dated as of such date, of Agent’s counsel in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit E. (c) If called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received a certificate of the Company, dated such Settlement Date, and signed by an officer of the Company who is duly authorized to make the statement set forth therein (an “Authorized Officer”), to the effect set forth in subparagraph (a)(iv) above, and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such date. (d) If called for by any Terms Agreement, on the date of such Terms Agreement and corresponding Settlement Date, the Company’s independent auditors shall have furnished to you a letter or letters, dated as of the date of such Terms Agreement or such Settlement Date, as the case may be, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus, as then amended or supplemented; provided that each letter so furnished shall use a “cut-off date” no more than five business days prior to the date of such letter.
Appears in 1 contract
Conditions of the Obligations of the Agent. Your obligation to solicit offers to purchase Program Securities as agent of the Company in connection with any offering of Securities and Company, your obligation to purchase Program Securities as principal pursuant to any Notes Terms Agreement or Units Terms Agreement and the obligation of any other purchaser to purchase Program Securities will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Program Securities, at the time of such solicitation and at each Time of Sale solicitation, and, in the case of your or any other purchaser’s obligation to purchase Program Securities, at the time the Company accepts the offer to purchase such Program Securities and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified belowspecified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any event or occurrence that resultschange, or would result inany development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its consolidated subsidiaries, taken as a Material Adverse Effect whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Prospectus or Time of Sale Information and that, in your reasonable judgment, is material and adverse and that makes it, in your reasonable judgment, impracticable or inadvisable to market the Program Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale InformationProspectus;
(ii) there shall not have occurred any of the following: (a) such a suspension or material limitation change in trading in securities generally on the New York Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity financial, political or crisis the effect of which shall be such economic conditions or currency exchange rates or exchange controls as to make it, would in your reasonable judgment, impracticable view be likely to prejudice materially the success of the offering and distribution of the Program Securities or inadvisable to market the Securities on the terms and dealings in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Program Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;secondary market; and
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 424 or Rule 433 under the Securities Act); and
(iv) since the date on which the Company has filed with the Commission the Company’s most recent Annual Report on Form 10-K, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Company or any of the securities of the Company or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of in Section 3(a)(62) of the Exchange Act; , or Rating and Investment Information, Inc.;
(A) except, in each case described in paragraph (i), (ii) or (iviii) above, as disclosed to you in writing by the Company prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made or (B) unless in each case described in (ii) above, the relevant event shall have occurred and been known to you prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made.
(b) If On the Commencement Date and, if called for by any Notes Terms Agreement or Units Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of Xxxxx Xxxx & Xxxxxxxx LLP, special counsel to the Company’s , or of other counsel (which satisfactory to you and who may be internal an officer of the Company, to the effect that:
(A) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(B) the Company has the corporate power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole;
(C) each of Xxxxxx Xxxxxxx & Co. LLC and Xxxxxx Xxxxxxx International Holdings Inc. is validly existing as a limited liability company or corporation, as applicable, in good standing under the laws of the jurisdiction of its formation or incorporation, as applicable, has the power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and, to the best of such counsel’s knowledge, is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole;
(D) each of the Company and, to the best of such counsel’s knowledge, Xxxxxx Xxxxxxx & Co. LLC and Xxxxxx Xxxxxxx International Holdings Inc. has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in such form the manner described in the Prospectus, as agreed amended or supplemented, and the Time of Sale Prospectus, if applicable, except to the extent that the failure to obtain or file would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole;
(E) each of this Agreement and any applicable Written Notes Terms Agreement or Written Units Terms Agreement has been duly authorized, executed and delivered by the Company;
(F) each Indenture has been duly qualified under the Trust Indenture Act and each of the Senior Debt Indenture, the Subordinated Debt Indenture, the Unit Agreement, the Unit Agreement Without Holders’ Obligations, the Warrant Agreement and the ICSD Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the AgentCompany, which may be enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to (i) the effect set forth in Exhibit D.
of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above and (ii) The opinionthe validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of the stated principal amount upon acceleration of Notes or Purchase Contracts to the extent determined to constitute unearned interest;
(G) the forms of Notes (including the forms of Indenture Pre-paid Purchase Contracts), whether issued alone or as part of a Unit, have been duly authorized and established in conformity with the provisions of the relevant Indenture and [certain terms of the Notes have been established pursuant to resolutions of the Board of Directors of the Company and Officer’s Certificates (as defined in the Indentures) dated as the date of such dateopinion and, when such other terms as are to be established by the officers of Agent’s counsel in the Company given authority to do so by the Board of Directors shall have been established, all such form as agreed to terms will have been duly authorized by the Company and will have been established in conformity with the Agent, which may be to the effect set forth in Exhibit E.
(c) If called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received a certificate provisions of the Company, dated such Settlement Date, and signed by an officer relevant Indenture,]1 [the terms of the Notes have been established pursuant to resolutions of the Board of Directors of the Company who is and all such terms have been duly authorized to make by the statement set forth therein (an “Authorized Officer”), to Company and have been established in conformity with the effect set forth in subparagraph (a)(iv) above, and to the effect that the representations and warranties provisions of the relevant Indenture,]2 and, if the Notes and the Indenture Pre-paid Purchase Contracts had been duly executed by the Company contained in this Agreement are true and correct as of such date.
(d) If called for authenticated by any Terms Agreementthe relevant Trustee or its duly appointed agent, and, if the Notes were issued under the NSS, had been properly effectuated by the CSK, on the date of such Terms Agreement opinion in accordance with the provisions of the relevant Indenture, all conditions precedent provided for in the applicable Indenture that relate to the authentication and corresponding Settlement Date, delivery of the Company’s independent auditors shall Notes and the Indenture Pre-paid Purchase Contracts would have furnished been complied with and if the Notes and Indenture Pre-paid Purchase Contracts had been delivered to you a letter or letters, dated as of and duly paid for by the purchasers thereof on the date of such Terms Agreement or opinion, such Settlement Date, as Notes and the case may be, in form Indenture Pre-paid Purchase Contracts would be entitled to the benefits of such Indenture and substance satisfactory to you containing statements would be valid and information binding obligations of the type ordinarily Company, enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above and (ii) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of the stated principal amount upon acceleration of Notes or Purchase Contracts to the extent determined to constitute unearned interest;
(H) the forms of Units under the Unit Agreement, including the forms of Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid 1 To be included in accountants’ “comfort letters” to underwriters with respect to an opinion delivered on the financial statements and certain financial information contained in or incorporated by reference into the Prospectus, as then amended or supplemented; provided that each letter so furnished shall use a “cut-off date” no more than five business days prior to the date of such letterCommencement Date.
Appears in 1 contract
Conditions of the Obligations of the Agent. Your obligation to solicit offers to purchase Program Securities as agent of the Company in connection with any offering of Securities and Company, your obligation to purchase Program Securities as principal pursuant to any Notes Terms Agreement or Units Terms Agreement and the obligation of any other purchaser to purchase Program Securities will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Program Securities, at the time of such solicitation and at each Time of Sale solicitation, and, in the case of your or any other purchaser’s obligation to purchase Program Securities, at the time the Company accepts the offer to purchase such Program Securities and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified belowspecified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any event or occurrence that resultschange, or would result inany development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its consolidated subsidiaries, taken as a Material Adverse Effect whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Prospectus or Time of Sale Information and that, in your reasonable judgment, is material and adverse and that makes it, in your reasonable judgment, impracticable or inadvisable to market the Program Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale InformationProspectus;
(ii) there shall not have occurred any of the following: (a) such a suspension or material limitation change in trading in securities generally on the New York Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity financial, political or crisis the effect of which shall be such economic conditions or currency exchange rates or exchange controls as to make it, would in your reasonable judgment, impracticable view be likely to prejudice materially the success of the offering and distribution of the Program Securities or inadvisable to market the Securities on the terms and dealings in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Program Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;secondary market; and
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 424 or Rule 433 under the Securities Act); and
(iv) since the date on which the Company has filed with the Commission the Company’s most recent Annual Report on Form 10-K, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Company or any of the securities of the Company or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of in Section 3(a)(62) of the Exchange Act; , or Rating and Investment Information, Inc.;
(A) except, in each case described in paragraph (i), (ii) or (iviii) above, as disclosed to you in writing by the Company prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made or (B) unless in each case described in (ii) above, the relevant event shall have occurred and been known to you prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made.
(b) If On the Commencement Date and, if called for by any Notes Terms Agreement or Units Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of Dxxxx Xxxx & Wxxxxxxx LLP, special counsel to the Company’s , or of other counsel (which satisfactory to you and who may be internal an officer of the Company, to the effect that:
(A) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(B) the Company has the corporate power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole;
(C) each of Mxxxxx Sxxxxxx & Co. LLC and Mxxxxx Sxxxxxx International Holdings Inc. is validly existing as a limited liability company or corporation, as applicable, in good standing under the laws of the jurisdiction of its formation or incorporation, as applicable, has the power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and, to the best of such counsel’s knowledge, is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole;
(D) each of the Company and, to the best of such counsel’s knowledge, Mxxxxx Sxxxxxx & Co. LLC and Mxxxxx Sxxxxxx International Holdings Inc. has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in such form the manner described in the Prospectus, as agreed amended or supplemented, and the Time of Sale Prospectus, if applicable, except to the extent that the failure to obtain or file would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole;
(E) each of this Agreement and any applicable Written Notes Terms Agreement or Written Units Terms Agreement has been duly authorized, executed and delivered by the Company;
(F) each Indenture has been duly qualified under the Trust Indenture Act and each of the Senior Debt Indenture, the Subordinated Debt Indenture, the Unit Agreement, the Unit Agreement Without Holders’ Obligations, the Warrant Agreement and the ICSD Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the AgentCompany, which may be enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to the effect set forth in Exhibit D.of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above;
(iiG) The opinionthe forms of Notes (including the forms of Indenture Pre-paid Purchase Contracts), whether issued alone or as part of a Unit, have been duly authorized and established in conformity with the provisions of the relevant Indenture and [certain terms of the Notes have been established pursuant to resolutions of the Board of Directors of the Company and Officer’s Certificates (as defined in the Indentures) dated as the date of such dateopinion and, when such other terms as are to be established by the officers of Agent’s counsel in the Company given authority to do so by the Board of Directors shall have been established, all such form as agreed to terms will have been duly authorized by the Company and will have been established in conformity with the Agent, which may be to the effect set forth in Exhibit E.
(c) If called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received a certificate provisions of the Company, dated such Settlement Date, and signed by an officer relevant Indenture,]1 [the terms of the Notes have been established pursuant to resolutions of the Board of Directors of the Company who is and all such terms have been duly authorized to make by
1 To be included in an opinion delivered on the statement set forth therein (an “Authorized Officer”), to Commencement Date. the effect set forth Company and have been established in subparagraph (a)(iv) above, and to conformity with the effect that the representations and warranties provisions of the relevant Indenture,]2 and, if the Notes and the Indenture Pre-paid Purchase Contracts had been executed by the Company contained in this Agreement are true and correct as of such date.
(d) If called for authenticated by any Terms Agreementthe relevant Trustee or its duly appointed agent, and, if the Notes were issued under the NSS, had been properly effectuated by the CSK, on the date of such Terms Agreement opinion in accordance with the provisions of the relevant Indenture, all conditions precedent provided for in the applicable Indenture that relate to the authentication and corresponding Settlement Date, delivery of the Company’s independent auditors shall Notes and the Indenture Pre-paid Purchase Contracts would have furnished been complied with and if the Notes and Indenture Pre-paid Purchase Contracts had been delivered to you a letter or letters, dated as of and duly paid for by the purchasers thereof on the date of such Terms Agreement or opinion, such Settlement Date, as Notes and the case may be, in form Indenture Pre-paid Purchase Contracts would be entitled to the benefits of such Indenture and substance satisfactory to you containing statements would be valid and information binding obligations of the type ordinarily included Company, enforceable in accountantsaccordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ “comfort letters” to underwriters with respect rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to the financial statements effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above;
(H) the forms of Units under the Unit Agreement, including the forms of Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase Contracts, have been duly authorized and established in conformity with the provisions of the Unit Agreement and [certain financial information contained terms of those Purchase Contracts have been established pursuant to resolutions of the Board of Directors of the Company and Officer’s Certificates (as defined in or incorporated by reference into the Prospectus, as then amended or supplemented; provided that each letter so furnished shall use a “cut-off date” no more than five business days prior to Unit Agreement) dated the date of such letter.opinion and, when such other terms as are to be established by the officers of the Company given authority to do so by the Board of Directors shall have been established, all such terms will have been duly authorized by the Company and will have been established in conformity with the provisions of the Unit Agreement]1 [the terms of those Purchase Contracts have been established pursuant to resolutions of the Board of Directors of the Company and all such terms have been duly authorized by the Company and have been established in conformity with the provisions of the Unit Agreement]2. If such Units (including the Physically-settled Pre-paid Purchase Contracts and the Non-Pre-paid Purchase Contracts contained therein) had been delivered (and any Purchase Contracts included therein had been executed by the Company and countersigned by the Unit Agent) on the date of such opinion, all conditions precedent provided for in the Unit Agreement that relate to the delivery of the Units and the
Appears in 1 contract
Samples: Euro Distribution Agreement (Morgan Stanley Capital Trust XII)
Conditions of the Obligations of the Agent. Your obligation to solicit offers to purchase Program Securities as agent of the Company in connection with any offering of Securities and relevant Issuer, your obligation to purchase Program Securities as principal pursuant to any Notes Terms Agreement, Units Terms Agreement or Warrants Terms Agreement and the obligation of any other purchaser to purchase Program Securities will be subject to the accuracy of the representations and warranties on the part of the Company relevant Issuer and the Guarantor, if applicable, herein, to the accuracy of the statements of the Company’s officers of the relevant Issuer and the Guarantor, if applicable, made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Company relevant Issuer and the Guarantor, if applicable, of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Program Securities, at the time of such solicitation and at each Time of Sale solicitation, and, in the case of your or any other purchaser’s obligation to purchase Program Securities, at the time the Company relevant Issuer accepts the offer to purchase such Program Securities and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified belowspecified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any event or occurrence that resultschange, or would result inany development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of Xxxxxx Xxxxxxx and its consolidated subsidiaries, taken as a Material Adverse Effect whole, and, in the case of Program Securities to be issued by MSFL, MSFL, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Prospectus or Time of Sale Information and that, in your reasonable judgment, is material and adverse and that makes it, in your reasonable judgment, impracticable or inadvisable to market the Program Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale InformationProspectus;
(ii) there shall not have occurred any (A) suspension or material limitation of trading generally on or by, as so amended the case may be, any of the New York Stock Exchange, the NYSE American, The NASDAQ Stock Market LLC, the Chicago Board Options Exchange, the Chicago Mercantile Exchange or supplementedthe Chicago Board of Trade, (B) suspension of trading of any securities of the relevant Issuer or the Guarantor, if applicable, on any exchange or in any over the counter market, (C) material disruption in securities settlement, payment or clearance services in the United States or, in the event of a global offering, in any relevant foreign jurisdiction, (D) declaration of any moratorium on commercial banking activities by Federal or New York State authorities or (E) any outbreak or escalation of hostilities or any change in financial markets (or, if the relevant Program Securities are denominated in a currency other than U.S. dollars, any change in currency exchange rates or controls) or any calamity or crisis that, in your judgment, is material and adverse and which, singly or together with any other event specified in this clause (E), makes it, in your judgment, impracticable or inadvisable to proceed with the purchase offer, sale or delivery of the Program Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your reasonable judgment, impracticable or inadvisable to market the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;Prospectus; and
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 424 or Rule 433 under the Securities Act); and
(iv) since the date on which the Company has filed with the Commission the Company’s most recent Annual Report on Form 10-K, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Company relevant Issuer or the Guarantor, if applicable, or any of the securities of the relevant Issuer or the Guarantor, if applicable, or in the rating outlook for the relevant Issuer or the Guarantor, if applicable, by any “nationally recognized statistical rating organization,” as such term is defined for purposes of in Section 3(a)(62) of the Exchange Act; , or Rating and Investment Information, Inc.;
(A) except, in each case described in paragraph (i(i), (ii(ii) or (iv(iii) above, as disclosed to you in writing by the Company relevant Issuer or the Guarantor, if applicable, prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made or (B) unless in each case described in (ii) above, the relevant event shall have occurred and been known to you prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made.
(b) If On the Commencement Date and, if called for by any Notes Terms Agreement, Units Terms Agreement or Warrants Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of the Company’s Xxxxx Xxxx & Xxxxxxxx LLP, special counsel (which to Xxxxxx Xxxxxxx and MSFL, or of other counsel satisfactory to you and who may be internal counsel) in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit D.
(ii) The opinion, dated as of such date, of Agent’s counsel in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit E.
(c) If called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received a certificate of the Company, dated such Settlement Date, and signed by an officer of an Issuer or the Company who is duly authorized to make the statement set forth therein (an “Authorized Officer”)Guarantor, to the effect set forth that:
(A) Xxxxxx Xxxxxxx has been duly incorporated, is validly existing as a corporation in subparagraph good standing under the laws of the State of Delaware and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(a)(ivB) aboveMSFL is validly existing as a limited liability company in good standing under the laws of the State of Delaware;
(C) each of Xxxxxx Xxxxxxx and MSFL has the power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the effect extent that the representations failure to be so qualified or be in good standing would not have a material adverse effect on Xxxxxx Xxxxxxx and warranties its consolidated subsidiaries, taken as a whole;
(D) each of Xxxxxx Xxxxxxx & Co. LLC and Xxxxxx Xxxxxxx International Holdings Inc. is validly existing as a limited liability company or corporation, as applicable, in good standing under the laws of the Company contained jurisdiction of its formation or incorporation, as applicable, has the power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and, to the best of such counsel’s knowledge, is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on Xxxxxx Xxxxxxx and its consolidated subsidiaries, taken as a whole;
(E) each of Xxxxxx Xxxxxxx and MSFL, and, to the best of such counsel’s knowledge, Xxxxxx Xxxxxxx & Co. LLC and Xxxxxx Xxxxxxx International Holdings Inc. has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, except to the extent that the failure to obtain or file would not have a material adverse effect on Xxxxxx Xxxxxxx and its consolidated subsidiaries, taken as a whole;
(F) each of this Agreement are true and correct as of such date.
(d) If called for by any applicable Written Notes Terms Agreement, Written Units Terms Agreement or Written Warrants Terms Agreement has been duly authorized, executed and delivered by Xxxxxx Xxxxxxx and MSFL;
(G) each Xxxxxx Xxxxxxx Indenture has been duly qualified under the Trust Indenture Act and each of the Xxxxxx Xxxxxxx Senior Debt Indenture, the Xxxxxx Xxxxxxx Subordinated Debt Indenture, the Xxxxxx Xxxxxxx Unit Agreement, the Xxxxxx Xxxxxxx Unit Agreement Without Holders’ Obligations and the Xxxxxx Xxxxxxx Warrant Agreement has been duly authorized, executed and delivered by Xxxxxx Xxxxxxx and is a valid and binding agreement of Xxxxxx Xxxxxxx, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above and (ii) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of the stated principal amount upon acceleration of Xxxxxx Xxxxxxx Notes or Xxxxxx Xxxxxxx Purchase Contracts to the extent determined to constitute unearned interest;
(H) the MSFL Senior Debt Indenture has been duly qualified under the Trust Indenture Act and each of the MSFL Senior Debt Indenture, the MSFL Unit Agreement, the MSFL Unit Agreement Without Holders’ Obligations and the MSFL Warrant Agreement has been duly authorized, executed and delivered by MSFL and is a valid and binding agreement of MSFL, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above, (ii) any provision of the MSFL Senior Debt Indenture, the MSFL Unit Agreement, the MSFL Unit Agreement Without Holders’ Obligations or the MSFL Warrant Agreement that purports to avoid the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law by limiting the amount of Xxxxxx Xxxxxxx’x obligation as Guarantor and (iii) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of the stated principal amount upon acceleration of MSFL Notes or MSFL Purchase Contracts to the extent determined to constitute unearned interest;
(I) the forms of Xxxxxx Xxxxxxx Notes (including the forms of Indenture Pre-paid Xxxxxx Xxxxxxx Purchase Contracts), whether issued alone or as part of a Xxxxxx Xxxxxxx Unit, have been duly authorized by Xxxxxx Xxxxxxx and established in conformity with the provisions of the relevant Xxxxxx Xxxxxxx Indenture and [certain terms of the Xxxxxx Xxxxxxx Notes have been established pursuant to resolutions of the Board of Directors of Xxxxxx Xxxxxxx and Officer’s Certificates (as defined in the Xxxxxx Xxxxxxx Indentures) dated the date of such opinion and, when such other terms as are to be established by the officers of Xxxxxx Xxxxxxx given authority to do so by the Board of Directors of Xxxxxx Xxxxxxx shall have been established, all such terms will have been duly authorized by Xxxxxx Xxxxxxx and will have been established in conformity with the provisions of the relevant Xxxxxx Xxxxxxx Indenture,]1 [the terms of the Xxxxxx Xxxxxxx Notes have been established pursuant to resolutions of the Board of Directors of Xxxxxx Xxxxxxx and all such terms have been duly authorized by Xxxxxx Xxxxxxx and have been established in conformity with the provisions of the relevant Xxxxxx Xxxxxxx Indenture,]2 and, if the Xxxxxx Xxxxxxx Notes and the Indenture Pre-paid Xxxxxx Xxxxxxx Purchase Contracts had been duly executed by Xxxxxx Xxxxxxx and authenticated by the relevant Xxxxxx Xxxxxxx Trustee or its duly appointed agent on the date of such Terms Agreement opinion in accordance with the provisions of the relevant Xxxxxx Xxxxxxx Indenture, all conditions precedent provided for in the applicable Xxxxxx Xxxxxxx Indenture that relate to the authentication and corresponding Settlement Date, delivery of the Company’s independent auditors shall Xxxxxx Xxxxxxx Notes and the Indenture Pre-paid Xxxxxx Xxxxxxx Purchase Contracts would have furnished been complied with and if the Xxxxxx Xxxxxxx Notes and Indenture Pre-paid Xxxxxx Xxxxxxx Purchase Contracts had been delivered to you a letter or letters, dated as of and duly paid for by the purchasers thereof on the date of such Terms Agreement opinion, such Xxxxxx Xxxxxxx Notes and the Indenture Pre-paid Xxxxxx Xxxxxxx Purchase Contracts would be entitled to the benefits of such Xxxxxx Xxxxxxx Indenture and would be valid and binding obligations of Xxxxxx Xxxxxxx enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to (i) the effect of fraudulent conveyance, fraudulent transfer or such Settlement Datesimilar provision of applicable law on the conclusions expressed above and (ii) the validity, as the case may be, in form and substance satisfactory legally binding effect or enforceability of any provision that permits holders to you containing statements and information collect any portion of the type ordinarily stated principal amount upon acceleration of Xxxxxx Xxxxxxx Notes or Xxxxxx Xxxxxxx Purchase Contracts to the extent determined to constitute unearned interest;
(J) the forms of MSFL Notes (including the forms of Indenture Pre-paid MSFL Purchase Contracts), whether issued alone or as part of a MSFL Unit, have been duly authorized by MSFL and established in conformity with the provisions of the MSFL Senior Debt Indenture and [certain terms of the MSFL Notes have been established pursuant to resolutions of the Board of Managers of MSFL and Officer’s Certificates (as defined in the MSFL Senior Debt Indenture) dated the 1 To be included in accountants’ “comfort letters” to underwriters with respect to an opinion delivered on the financial statements and certain financial information contained in or incorporated by reference into the Prospectus, as then amended or supplemented; provided that each letter so furnished shall use a “cut-off date” no more than five business days prior to the date of such letterCommencement Date.
Appears in 1 contract
Samples: u.s. Distribution Agreement (Morgan Stanley Finance LLC)
Conditions of the Obligations of the Agent. Your obligation to solicit offers to purchase Program Securities as agent of the Company in connection with any offering of Securities and relevant Issuer, your obligation to purchase Program Securities as principal pursuant to any Notes Terms Agreement, Units Terms Agreement or Warrants Terms Agreement and the obligation of any other purchaser to purchase Program Securities will be subject to the accuracy of the representations and warranties on the part of the Company relevant Issuer and the Guarantor, if applicable, herein, to the accuracy of the statements of the Company’s officers of the relevant Issuer and the Guarantor, if applicable, made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Company relevant Issuer and the Guarantor, if applicable, of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Program Securities, at the time of such solicitation and at each Time of Sale solicitation, and, in the case of your or any other purchaser’s obligation to purchase Program Securities, at the time the Company relevant Issuer accepts the offer to purchase such Program Securities and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified belowspecified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any event or occurrence that resultschange, or would result inany development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of Mxxxxx Sxxxxxx and its consolidated subsidiaries, taken as a Material Adverse Effect whole, and, in the case of Program Securities to be issued by MSFL, MSFL, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Prospectus or Time of Sale Information and that, in your reasonable judgment, is material and adverse and that makes it, in your reasonable judgment, impracticable or inadvisable to market the Program Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale InformationProspectus;
(ii) there shall not have occurred any (A) suspension or material limitation of trading generally on or by, as so amended the case may be, any of the New York Stock Exchange, the NYSE MKT LLC, The NASDAQ Stock Market LLC, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or supplementedthe Chicago Board of Trade, (B) suspension of trading of any securities of the relevant Issuer or the Guarantor, if applicable, on any exchange or in any over the counter market, (C) material disruption in securities settlement, payment or clearance services in the United States or, in the event of a global offering, in any relevant foreign jurisdiction, (D) declaration of any moratorium on commercial banking activities by Federal or New York State authorities or (E) any outbreak or escalation of hostilities or any change in financial markets (or, if the relevant Program Securities are denominated in a currency other than U.S. dollars, any change in currency exchange rates or controls) or any calamity or crisis that, in your judgment, is material and adverse and which, singly or together with any other event specified in this clause (E), makes it, in your judgment, impracticable or inadvisable to proceed with the purchase offer, sale or delivery of the Program Securities on the terms and in the manner contemplated in the Prospectus or the Time of Sale Information;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock ExchangeProspectus; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your reasonable judgment, impracticable or inadvisable to market the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;and
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 424 or Rule 433 under the Securities Act); and
(iv) since the date on which the Company has filed with the Commission the Company’s most recent Annual Report on Form 10-K, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Company relevant Issuer or the Guarantor, if applicable, or any of the securities of the relevant Issuer or the Guarantor, if applicable, or in the rating outlook for the relevant Issuer or the Guarantor, if applicable, by any “nationally recognized statistical rating organization,” as such term is defined for purposes of in Section 3(a)(62) of the Exchange Act; , or Rating and Investment Information, Inc.;
(A) except, in each case described in paragraph (i(i), (ii(ii) or (iv(iii) above, as disclosed to you in writing by the Company relevant Issuer or the Guarantor, if applicable, prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made or (B) unless in each case described in (ii) above, the relevant event shall have occurred and been known to you prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made.
(b) If On the Commencement Date and, if called for by any Notes Terms Agreement, Units Terms Agreement or Warrants Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of the Company’s Dxxxx Xxxx & Wxxxxxxx LLP, special counsel (which to Mxxxxx Sxxxxxx and MSFL, or of other counsel satisfactory to you and who may be internal counsel) in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit D.
(ii) The opinion, dated as of such date, of Agent’s counsel in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit E.
(c) If called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received a certificate of the Company, dated such Settlement Date, and signed by an officer of an Issuer or the Company who is duly authorized to make the statement set forth therein (an “Authorized Officer”)Guarantor, to the effect set forth that:
(A) Mxxxxx Sxxxxxx has been duly incorporated, is validly existing as a corporation in subparagraph good standing under the laws of the State of Delaware and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(a)(ivB) aboveMSFL is validly existing as a limited liability company in good standing under the laws of the State of Delaware;
(C) each of Mxxxxx Sxxxxxx and MSFL has the power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the effect extent that the representations failure to be so qualified or be in good standing would not have a material adverse effect on Mxxxxx Sxxxxxx and warranties its consolidated subsidiaries, taken as a whole;
(D) each of Mxxxxx Sxxxxxx & Co. LLC and Mxxxxx Sxxxxxx International Holdings Inc. is validly existing as a limited liability company or corporation, as applicable, in good standing under the laws of the Company contained jurisdiction of its formation or incorporation, as applicable, has the power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and, to the best of such counsel’s knowledge, is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on Mxxxxx Sxxxxxx and its consolidated subsidiaries, taken as a whole;
(E) each of Mxxxxx Sxxxxxx and MSFL, and, to the best of such counsel’s knowledge, Mxxxxx Sxxxxxx & Co. LLC and Mxxxxx Sxxxxxx International Holdings Inc. has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, except to the extent that the failure to obtain or file would not have a material adverse effect on Mxxxxx Sxxxxxx and its consolidated subsidiaries, taken as a whole;
(F) each of this Agreement are true and correct as of such date.
(d) If called for by any applicable Written Notes Terms Agreement, Written Units Terms Agreement or Written Warrants Terms Agreement has been duly authorized, executed and delivered by Mxxxxx Sxxxxxx and MSFL;
(G) each Mxxxxx Sxxxxxx Indenture has been duly qualified under the Trust Indenture Act and each of the Mxxxxx Sxxxxxx Senior Debt Indenture, the Mxxxxx Sxxxxxx Subordinated Debt Indenture, the Mxxxxx Sxxxxxx Unit Agreement, the Mxxxxx Sxxxxxx Unit Agreement Without Holders’ Obligations and the Mxxxxx Sxxxxxx Warrant Agreement has been duly authorized, executed and delivered by Mxxxxx Sxxxxxx and is a valid and binding agreement of Mxxxxx Sxxxxxx, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above and (ii) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of the stated principal amount upon acceleration of Mxxxxx Sxxxxxx Notes or Mxxxxx Sxxxxxx Purchase Contracts to the extent determined to constitute unearned interest;
(H) the MSFL Senior Debt Indenture has been duly qualified under the Trust Indenture Act and each of the MSFL Senior Debt Indenture, the MSFL Unit Agreement, the MSFL Unit Agreement Without Holders’ Obligations and the MSFL Warrant Agreement has been duly authorized, executed and delivered by MSFL and is a valid and binding agreement of MSFL, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above , (ii) any provision of the MSFL Senior Debt Indenture, the MSFL Unit Agreement, the MSFL Unit Agreement Without Holders’ Obligations or the MSFL Warrant Agreement that purports to avoid the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law by limiting the amount of Mxxxxx Xxxxxxx’x obligation as Guarantor and (iii) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of the stated principal amount upon acceleration of MSFL Notes or MSFL Purchase Contracts to the extent determined to constitute unearned interest;
(I) the forms of Mxxxxx Sxxxxxx Notes (including the forms of Indenture Pre-paid Mxxxxx Sxxxxxx Purchase Contracts), whether issued alone or as part of a Mxxxxx Sxxxxxx Unit, have been duly authorized by Mxxxxx Sxxxxxx and established in conformity with the provisions of the relevant Mxxxxx Sxxxxxx Indenture and [certain terms of the Mxxxxx Sxxxxxx Notes have been established pursuant to resolutions of the Board of Directors of Mxxxxx Sxxxxxx and Officer’s Certificates (as defined in the Mxxxxx Sxxxxxx Indentures) dated the date of such Terms Agreement and corresponding Settlement Dateopinion and, when such other terms as are to be established by the Company’s independent auditors officers of Mxxxxx Sxxxxxx given authority to do so by the Board of Directors of Mxxxxx Sxxxxxx shall have furnished to you a letter or lettersbeen established, dated as all such terms will have been duly authorized by Mxxxxx Sxxxxxx and will have been established in conformity with the provisions of the date of such Terms Agreement or such Settlement Date, as relevant Mxxxxx Sxxxxxx Indenture,]1 [the case may be, in form and substance satisfactory to you containing statements and information terms of the type ordinarily Mxxxxx Sxxxxxx Notes have been established pursuant to resolutions of the Board of Directors of Mxxxxx Sxxxxxx and all such terms have been duly authorized by Mxxxxx Sxxxxxx and have been established in conformity with the provisions of the relevant Mxxxxx Sxxxxxx Indenture,]2 and, if the Mxxxxx Sxxxxxx Notes _______________ 1 To be included in accountants’ “comfort letters” to underwriters with respect to an opinion delivered on the financial statements and certain financial information contained in or incorporated by reference into the Prospectus, as then amended or supplemented; provided that each letter so furnished shall use a “cut-off date” no more than five business days prior to the date of such letterCommencement Date.
Appears in 1 contract
Samples: u.s. Distribution Agreement (Morgan Stanley Capital Trust Iv)
Conditions of the Obligations of the Agent. Your obligation to solicit offers to purchase Securities as agent of the Company in connection with any offering of Securities and your obligation to purchase Securities as principal pursuant to under any Terms Agreement will be subject subject, in your reasonable discretion, to the accuracy of the condition that all representations and warranties on the part of the Company herein, to the accuracy of the and other statements of the Company’s officers made in each certificate furnished pursuant to Issuer herein are, at and as of such time of delivery of the provisions hereof Securities, true and to correct, the performance and observance by condition that the Company Issuer shall have performed all of all covenants and agreements herein contained on its part obligations hereunder theretofore to be performed and observed (performed, and, except as otherwise provided in the case of your obligation to solicit offers to purchase Securitiesapplicable Terms Agreement, at the time of such solicitation and at each Time of Sale and, in the case of your obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified belowconditions:
(a) Prior Between the Time of Sale and at or prior to such solicitation or purchase, as the case may betime of delivery of the Securities:
(i) there shall not have occurred any event or occurrence that resultschange, or would result inany development involving a prospective change, in the business, financial condition, shareholders’ equity or results of operations of the Issuer and its subsidiaries on a Material Adverse Effect consolidated basis, taken as a whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at supplemented, and the time effect of such solicitation or at the time such offer to purchase was made, that is not described in the Prospectus or Time of Sale Information and thatwhich is, in your reasonable judgmentjudgment after consultation with the Issuer, is so material and adverse and that makes it, in your reasonable judgment, as to make it impracticable or inadvisable to market proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale InformationInformation and the Prospectus, in each case as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the London Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared by either U.S. federal or New York state authorities or a general moratorium on commercial banking activities in the relevant regulatory authoritiesUnited Kingdom declared by authorities in the United Kingdom; and (c) any outbreak the United States or material escalation the United Kingdom shall have become engaged in hostilities which have resulted in the declaration of hostilities a national emergency or other national or international calamity or crisis war the effect of which shall be such as to make itwhich, in the case of (i), (ii) or (iii), in your reasonable judgmentjudgment after consultation with the Issuer, makes it impracticable or inadvisable to market the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase public offering or the delivery of the Securities by you on the terms and in the manner contemplated in the Prospectus or Time of Sale InformationInformation and the Prospectus, in each case as so amended or supplemented;
(iii) the Prospectus, each Each Issuer Free Writing Prospectus and all other Time of Sale Information shall have been timely filed by the Issuer with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, SEC to the extent required by Rule 424 or Rule 433 under the Securities Act and the Prospectus as amended or supplemented shall have been filed with the SEC pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations of the SEC under the Securities Act); and
(iv) since the date on which the Company has filed with the Commission the Company’s most recent Annual Report on Form 10-K, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Issuer’s long-term senior unsecured debt by Xxxxx’x Investors Services, Inc. or Standard & Poor’s Corporation and neither such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating accorded the Company by of any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) of the Exchange Actdebt; except, in each case described in paragraph subsection (i), (ii) or (iv) above, as disclosed to you in writing by the Company Issuer prior to such solicitation or, in the case Time of a purchase Sale or (B) the relevant event shall have occurred and been known to you prior to the Time of Securities, before the offer to purchase such Securities was madeSale.
(b) If called for by any Terms Agreement, on On the corresponding Settlement Date, Commencement Date you shall have received:
(i) The received an opinion, dated as of such date, of the Company’s Xxxxxxxx & Xxxxxxxx, special U.S. counsel (which may be internal counsel) in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit D.
(ii) The opinion, dated as of such date, of Agent’s counsel in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit E.
(c) If called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received a certificate of the Company, dated such Settlement Date, and signed by an officer of the Company who is duly authorized to make the statement set forth therein (an “Authorized Officer”), to the effect set forth in subparagraph (a)(iv) above, and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such date.
(d) If called for by any Terms Agreement, on the date of such Terms Agreement and corresponding Settlement DateIssuer, the Company’s independent auditors shall have furnished to you a letter or letters, dated as form of the date of such Terms Agreement or such Settlement Date, as the case may be, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters which is attached with respect to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus, as then amended or supplemented; provided that each letter so furnished shall use a “cut-off date” no more than five business days prior to the date of such letter.Schedule I.
Appears in 1 contract
Conditions of the Obligations of the Agent. Your obligation to solicit offers to purchase Securities as agent of the Company in connection with any offering of Securities and your obligation to purchase Securities as principal pursuant to under any Terms Agreement will be subject subject, in your reasonable discretion, to the accuracy of the condition that all representations and warranties on the part of the Company herein, to the accuracy of the and other statements of the Company’s officers made in each certificate furnished pursuant to Issuer herein are, at and as of such time of delivery of the provisions hereof Securities, true and to correct, the performance and observance by condition that the Company Issuer shall have performed all of all covenants and agreements herein contained on its part obligations hereunder theretofore to be performed and observed (performed, and, except as otherwise provided in the case of your obligation to solicit offers to purchase Securitiesapplicable Terms Agreement, at the time of such solicitation and at each Time of Sale and, in the case of your obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified belowconditions:
(a) Prior Between the Time of Sale and at or prior to such solicitation or purchase, as the case may betime of delivery of the Securities:
(i) there shall not have occurred any event or occurrence that resultschange, or would result inany development involving a prospective change, in the business, financial condition, shareholders’ equity or results of operations of the Issuer and its subsidiaries on a Material Adverse Effect consolidated basis, taken as a whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at supplemented, and the time effect of such solicitation or at the time such offer to purchase was made, that is not described in the Prospectus or Time of Sale Information and thatwhich is, in your reasonable judgmentjudgment after consultation with the Issuer, is so material and adverse and that makes it, in your reasonable judgment, as to make it impracticable or inadvisable to market proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale InformationInformation and the Prospectus, in each case as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the London Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared by either U.S. federal or New York state authorities or a general moratorium on commercial banking activities in the relevant regulatory authoritiesUnited Kingdom declared by authorities in the United Kingdom; and (c) any outbreak the United States or material escalation the United Kingdom shall have become engaged in hostilities which have resulted in the declaration of hostilities a national emergency or other national or international calamity or crisis war the effect of which shall be such as to make itwhich, in the case of (i), (ii) or (iii), in your reasonable judgmentjudgment after consultation with the Issuer, makes it impracticable or inadvisable to market the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase public offering or the delivery of the Securities by you on the terms and in the manner contemplated in the Prospectus or Time of Sale InformationInformation and the Prospectus, in each case as so amended or supplemented;
(iii) the Prospectus, each Each Issuer Free Writing Prospectus and all other Time of Sale Information shall have been timely filed by the Bank with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, SEC to the extent required by Rule 424 or Rule 433 under the Securities Act and the Prospectus as amended or supplemented shall have been filed with the SEC pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations of the SEC under the Securities Act); and
(iv) since the date on which the Company has filed with the Commission the Company’s most recent Annual Report on Form 10-K, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Issuer’s long-term senior unsecured debt by Xxxxx’x Investors Services, Inc. or Standard & Poor’s Corporation and neither such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating accorded the Company by of any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) of the Exchange Actdebt; except, in each case described in paragraph subsection (i), (ii) or (iv) above, as disclosed to you in writing by the Company Issuer prior to such solicitation or, in the case Time of a purchase Sale or (B) the relevant event shall have occurred and been known to you prior to the Time of Securities, before the offer to purchase such Securities was madeSale.
(b) If called for by any Terms Agreement, on On the corresponding Settlement Date, Commencement Date you shall have received:
(i) The received an opinion, dated as of such date, of the Company’s Xxxxxxxx & Xxxxxxxx, special U.S. counsel (which may be internal counsel) in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit D.
(ii) The opinion, dated as of such date, of Agent’s counsel in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit E.
(c) If called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received a certificate of the Company, dated such Settlement Date, and signed by an officer of the Company who is duly authorized to make the statement set forth therein (an “Authorized Officer”), to the effect set forth in subparagraph (a)(iv) above, and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such date.
(d) If called for by any Terms Agreement, on the date of such Terms Agreement and corresponding Settlement DateIssuer, the Company’s independent auditors shall have furnished to you a letter or letters, dated as form of the date of such Terms Agreement or such Settlement Date, as the case may be, in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters which is attached with respect to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus, as then amended or supplemented; provided that each letter so furnished shall use a “cut-off date” no more than five business days prior to the date of such letterSchedule II.
Appears in 1 contract
Conditions of the Obligations of the Agent. Your obligation to solicit offers to purchase Program Securities as agent of the Company in connection with any offering of Securities and relevant Issuer, your obligation to purchase Program Securities as principal pursuant to any Notes Terms Agreement, Units Terms Agreement or Warrants Terms Agreement and the obligation of any other purchaser to purchase Program Securities will be subject to the accuracy of the representations and warranties on the part of the Company relevant Issuer and the Guarantor, if applicable, herein, to the accuracy of the statements of the Company’s officers of the relevant Issuer and the Guarantor, if applicable, made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Company relevant Issuer and the Guarantor, if applicable, of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Program Securities, at the time of such solicitation and at each Time of Sale solicitation, and, in the case of your or any other purchaser’s obligation to purchase Program Securities, at the time the Company relevant Issuer accepts the offer to purchase such Program Securities and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified belowspecified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any event or occurrence that resultschange, or would result inany development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of Xxxxxx Xxxxxxx and its consolidated subsidiaries, taken as a Material Adverse Effect whole, and, in the case of Program Securities to be issued by MSFL, MSFL, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Prospectus or Time of Sale Information and that, in your reasonable judgment, is material and adverse and that makes it, in your reasonable judgment, impracticable or inadvisable to market the Program Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale InformationProspectus;
(ii) there shall not have occurred any (A) suspension or material limitation of trading generally on or by, as so amended the case may be, any of the New York Stock Exchange, the NYSE American, The NASDAQ Stock Market LLC, the Chicago Board Options Exchange, the Chicago Mercantile Exchange or supplementedthe Chicago Board of Trade, (B) suspension of trading of any securities of the relevant Issuer or the Guarantor, if applicable, on any exchange or in any over the counter market, (C) material disruption in securities settlement, payment or clearance services in the United States or, in the event of a global offering, in any relevant foreign jurisdiction, (D) declaration of any moratorium on commercial banking activities by Federal or New York State authorities or (E) any outbreak or escalation of hostilities or any change in financial markets (or, if the relevant Program Securities are denominated in a currency other than U.S. dollars, any change in currency exchange rates or controls) or any calamity or crisis that, in your judgment, is material and adverse and which, singly or together with any other event specified in this clause (E), makes it, in your judgment, impracticable or inadvisable to proceed with the purchase offer, sale or delivery of the Program Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your reasonable judgment, impracticable or inadvisable to market the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;Prospectus; and
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 424 or Rule 433 under the Securities Act); and
(iv) since the date on which the Company has filed with the Commission the Company’s most recent Annual Report on Form 10-K, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review review
for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Company relevant Issuer or the Guarantor, if applicable, or any of the securities of the relevant Issuer or the Guarantor, if applicable, or in the rating outlook for the relevant Issuer or the Guarantor, if applicable, by any “nationally recognized statistical rating organization,” as such term is defined for purposes of in Section 3(a)(62) of the Exchange Act; , or Rating and Investment Information, Inc.;
(A) except, in each case described in paragraph (i(i), (ii(ii) or (iv(iii) above, as disclosed to you in writing by the Company relevant Issuer or the Guarantor, if applicable, prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made or (B) unless in each case described in (ii) above, the relevant event shall have occurred and been known to you prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made.
(b) If On the Commencement Date and, if called for by any Notes Terms Agreement, Units Terms Agreement or Warrants Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of the Company’s Xxxxx Xxxx & Xxxxxxxx LLP, special counsel (which to Xxxxxx Xxxxxxx and MSFL, or of other counsel satisfactory to you and who may be internal counsel) in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit D.
(ii) The opinion, dated as of such date, of Agent’s counsel in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit E.
(c) If called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received a certificate of the Company, dated such Settlement Date, and signed by an officer of an Issuer or the Company who is duly authorized to make the statement set forth therein (an “Authorized Officer”)Guarantor, to the effect set forth that:
(A) Xxxxxx Xxxxxxx has been duly incorporated, is validly existing as a corporation in subparagraph good standing under the laws of the State of Delaware and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(a)(ivB) aboveMSFL is validly existing as a limited liability company in good standing under the laws of the State of Delaware;
(C) each of Xxxxxx Xxxxxxx and MSFL has the power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the effect extent that the representations failure to be so qualified or be in good standing would not have a material adverse effect on Xxxxxx Xxxxxxx and warranties its consolidated subsidiaries, taken as a whole;
(D) each of Xxxxxx Xxxxxxx & Co. LLC and Xxxxxx Xxxxxxx International Holdings Inc. is validly existing as a limited liability company or corporation, as applicable, in good standing under the laws of the Company contained jurisdiction of its formation or incorporation, as applicable, has the power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and, to the best of such counsel’s knowledge, is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on Xxxxxx Xxxxxxx and its consolidated subsidiaries, taken as a whole;
(E) each of Xxxxxx Xxxxxxx and MSFL, and, to the best of such counsel’s knowledge, Xxxxxx Xxxxxxx & Co. LLC and Xxxxxx Xxxxxxx International Holdings Inc. has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, except to the extent that the failure to obtain or file would not have a material adverse effect on Xxxxxx Xxxxxxx and its consolidated subsidiaries, taken as a whole;
(F) each of this Agreement are true and correct as of such date.
(d) If called for by any applicable Written Notes Terms Agreement, Written Units Terms Agreement or Written Warrants Terms Agreement has been duly authorized, executed and delivered by Xxxxxx Xxxxxxx and MSFL;
(G) each Xxxxxx Xxxxxxx Indenture has been duly qualified under the Trust Indenture Act and each of the Xxxxxx Xxxxxxx Senior Debt Indenture, the Xxxxxx Xxxxxxx Subordinated Debt Indenture, the Xxxxxx Xxxxxxx Unit Agreement, the Xxxxxx Xxxxxxx Unit Agreement Without Holders’ Obligations and the Xxxxxx Xxxxxxx Warrant Agreement has been duly authorized, executed and delivered by Xxxxxx Xxxxxxx and is a valid and binding agreement of Xxxxxx Xxxxxxx, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above and (ii) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of the stated principal amount upon acceleration of Xxxxxx Xxxxxxx Notes or Xxxxxx Xxxxxxx Purchase Contracts to the extent determined to constitute unearned interest;
(H) the MSFL Senior Debt Indenture has been duly qualified under the Trust Indenture Act and each of the MSFL Senior Debt Indenture, the MSFL Unit Agreement, the MSFL Unit Agreement Without Holders’ Obligations and the MSFL Warrant Agreement has been duly authorized, executed and delivered by MSFL and is a valid and binding agreement of MSFL, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above , (ii) any provision of the MSFL Senior Debt Indenture, the MSFL Unit Agreement, the MSFL Unit Agreement Without Holders’ Obligations or the MSFL Warrant Agreement that purports to avoid the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law by limiting the amount of Xxxxxx Xxxxxxx’x obligation as Guarantor and (iii) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of the stated principal amount upon acceleration of MSFL Notes or MSFL Purchase Contracts to the extent determined to constitute unearned interest;
(I) the forms of Xxxxxx Xxxxxxx Notes (including the forms of Indenture Pre-paid Xxxxxx Xxxxxxx Purchase Contracts), whether issued alone or as part of a Xxxxxx Xxxxxxx Unit, have been duly authorized by Xxxxxx Xxxxxxx and established in conformity with the provisions of the relevant Xxxxxx Xxxxxxx Indenture and [certain terms of the Xxxxxx Xxxxxxx Notes have been established pursuant to resolutions of the Board of Directors of Xxxxxx Xxxxxxx and Officer’s Certificates (as defined in the Xxxxxx Xxxxxxx Indentures) dated the date of such Terms Agreement and corresponding Settlement Dateopinion and, when such other terms as are to be established by the Company’s independent auditors officers of Xxxxxx Xxxxxxx given authority to do so by the Board of Directors of Xxxxxx Xxxxxxx shall have furnished to you a letter or lettersbeen established, dated as all such terms will have been duly authorized by Xxxxxx Xxxxxxx and will have been established in conformity with the provisions of the date of such Terms Agreement or such Settlement Date, as relevant Xxxxxx Xxxxxxx Indenture,]1 [the case may be, in form and substance satisfactory to you containing statements and information terms of the type ordinarily Xxxxxx Xxxxxxx Notes have been established pursuant to resolutions of the Board of Directors of Xxxxxx Xxxxxxx and all such terms have been duly authorized by Xxxxxx Xxxxxxx and have been established in conformity with the provisions of the relevant Xxxxxx Xxxxxxx Indenture,]2 and, if the Xxxxxx Xxxxxxx Notes ___________________ 1 To be included in accountants’ “comfort letters” to underwriters with respect to an opinion delivered on the financial statements and certain financial information contained in or incorporated by reference into the Prospectus, as then amended or supplemented; provided that each letter so furnished shall use a “cut-off date” no more than five business days prior to the date of such letterCommencement Date.
Appears in 1 contract
Samples: u.s. Distribution Agreement (Morgan Stanley Finance LLC)
Conditions of the Obligations of the Agent. Your obligation obligations hereunder are subject, in your discretion, to solicit offers to purchase Securities as agent the condition that all representations and warranties and other statements of the Company in connection with any offering herein are, at and as of Securities and your obligation to purchase Securities as principal pursuant to any Terms Agreement will be subject to the accuracy commencement of the representations Subscription and warranties on the part Community Offering and at and as of the Closing Date, true and correct in all material respects, the condition that the Company hereinshall have performed in all material respects all of its obligations hereunder to be performed on or before such dates, to the accuracy of the statements of the Company’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance following further conditions (which are solely for your benefit), unless waived in writing by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Securities, at the time of such solicitation and at each Time of Sale and, in the case of your obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified belowyou:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any event or occurrence that results, or would result in, a Material Adverse Effect from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Prospectus or Time of Sale Information and that, in your reasonable judgment, is material and adverse and that makes it, in your reasonable judgment, impracticable or inadvisable to market the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your reasonable judgment, impracticable or inadvisable to market the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information The Registration Statement shall have been timely filed with declared effective by the Commission not later than 5:30 p.m., Eastern time, on the date of this Agreement, or with your consent at a later time and date; and at the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities 1933 Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required or proceedings therefor initiated or threatened by Rule 424 or Rule 433 under the Securities Act); and
(iv) since the date on which the Company has filed with the Commission or any state authority, and no order or other action suspending the Company’s most recent Annual Report on Form 10-K, there effectiveness of the Prospectus shall not have occurred any downgrading, nor shall any notice have been given of any intended issued or potential downgrading proceedings therefor initiated or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) of the Exchange Act; except, in each case described in paragraph (i), (ii) or (iv) above, as disclosed to you in writing threatened by the Company prior to such solicitation or, in the case of a purchase of Securities, before the offer to purchase such Securities was madeCommission or any state authority.
(b) If called for by any Terms Agreement, on At the corresponding Settlement Date, Closing Date you shall have received:
(i1) The favorable opinion, dated as of such datethe Closing Date addressed to the Agent and for its benefit, of the Company’s Vedder, Price, Kaufxxx & Xammholz, counsel (which may be internal counsel) in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit D.
(ii) The opinion, dated as of such date, of Agent’s counsel in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit E.
(c) If called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received a certificate of the Company, dated such Settlement Date, and signed by an officer of the Company who is duly authorized to make the statement set forth therein (an “Authorized Officer”), to the effect set forth in subparagraph (a)(iv) above, and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such date.
(d) If called for by any Terms Agreement, on the date of such Terms Agreement and corresponding Settlement Date, the Company’s independent auditors shall have furnished to you a letter or letters, dated as of the date of such Terms Agreement or such Settlement Date, as the case may be, in form and substance satisfactory to you containing statements EVEREN Securities to the effect that:
(i) the Company has been duly incorporated and information is validly existing as a corporation in good standing under the laws of the type ordinarily included State of Illinois with full power and authority to own or lease its properties and conduct its business as described in accountants’ “comfort letters” the Prospectus; and the Company has been duly qualified to underwriters do business as a foreign corporation under the corporation law of, and is in good standing as such in, every jurisdiction where the ownership or leasing of property, or the conduct of its business requires such qualification except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the business, property, operations or income of the Company and its Subsidiaries on a consolidated basis;
(ii) an opinion to the same general effect as paragraph (i) of this subsection (1) in respect of each direct and indirect subsidiary of the Company;
(iii) The Company has an authorized and outstanding capitalization as set forth in the Prospectus and the Shares conform to the description thereof contained in the Prospectus. All of the issued and outstanding shares of Common Stock have been duly authorized, validly issued and are fully paid and non-assessable and free of preemptive or other similar rights and there are no options, agreements, contracts or other rights in existence to acquire from the Company any shares of Common Stock, except as set forth in the Prospectus. Except as set forth in the Prospectus, there are no holders of the securities of the Company having rights to the registration thereof. The Company has no banking subsidiary other than the Banks. All of the capital stock of each Subsidiary of the Company has been duly authorized, validly issued and is fully paid and non-assessable. Except as set forth in the Prospectus, the Company, directly or indirectly, owns of record and beneficially, free and clear of any liens, claims, encumbrances or rights of others, all of the issued and outstanding shares of each of its subsidiaries. There are no options, agreements, contracts or other rights in existence to purchase or acquire from the Company or its subsidiaries any issued and outstanding shares of such subsidiaries;
(iv) The Shares to be sold by the Company in the Subscription and Community Offering have been duly authorized and, when issued and delivered by the Company pursuant to the Subscription and Community Offering against payment of the consideration therefor, will be validly issued, fully paid and non-assessable and good title to the Shares will be transferred from the Company to the purchasers thereof against payment therefore to such claims as may be asserted against the purchaser by third party claimants; the holders of the Shares will not be subject to personal liability by reason of being such holders; the Shares are not subject to the preemptive rights Everen Securities, Inc. January __, 1997 Page 20 of any shareholder of the Company; and all corporate actions required to be taken for the authorization, issue and sale of the Shares have been validly and sufficiently taken;
(v) This Agreement has been duly and validly authorized, executed and delivered and constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with respect its terms, except insofar as (A) such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally; (B) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding thereafter may be brought; and (C) such enforcement may be subject to any limitations under applicable law which relate to the indemnification and contribution provisions of this Agreement.
(vi) The making and performance by the Company of this Agreement has been duly authorized by all necessary corporate action and will not violate any provision of the Company's charter or bylaws and will not result in the breach or be in contravention of any of the terms or provisions of or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its Subsidiaries under any agreement, franchise, license, indenture, lease, mortgage, deed of trust, or other instrument known to such counsel to which the Company or any Subsidiary is a party or by which the Company, any Subsidiary or the property of any of them may be bound or affected, or, to such counsel's knowledge, any law, order, judgment, rule or regulation applicable to the Company or any Subsidiary of any government, governmental instrumentality, court or regulatory body, administrative agency or other governmental body having jurisdiction over the Company or any Subsidiary or any of their respective properties, or any order of any court or governmental agency or authority entered in any proceeding to which the Company or any Subsidiary was or is now a party or by which it is bound. No consent, approval, authorization or other order of, or filing with, any court, regulatory body, administrative agency or other governmental body is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated herein, except for compliance with the 1933 Act and applicable Blue Sky laws public and clearance of the Subscription and Community Offering with the NASD;
(vii) the Registration Statement has become effective under the 1933 Act, and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated by the Commission under the 1933 Act, and the Registration Statement (including the information deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430A(b), if applicable), the Prospectus and each amendment or supplement thereto (except for the financial statements and certain other statistical or financial data included therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the 1933 Act; and such counsel does not know of any statutes or regulations or any legal or governmental proceedings pending or threatened required to be described in the Prospectus which are not described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described or filed, as required; and
(viii) the statements under the captions "______________-- Limitation of Liability and Indemnification," "Supervision and Regulation," and "Description of Capital Stock" in the Everen Securities, Inc. January __, 1997 Page 21 Prospectus, 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. In rendering such opinion, such counsel may rely, provided that the opinion shall state that you and they are entitled to so rely, as to factual matters on certificates of the officers and employees of, and accountants for, the Company. Such opinion may contain such other qualifications and assumptions as are reasonably acceptable to counsel for the Agent. In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company, and representatives of the Agent and its counsel, at which the contents of the Registration Statement, the Prospectus and related matters were discussed and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement or incorporated by reference into the ProspectusProspectus and has not made any independent check or verification thereof, on the basis of the foregoing (relying as to factual matters upon the statements of officers and other representatives of the Company), no facts have come to such counsel's attention that have led them to believe that the Registration Statement (other than financial statements, the notes thereto and related schedules and other financial, statistical and accounting data included therein or omitted therefrom, as then to which such counsel need express no belief), as amended or supplemented; provided , if applicable, at the time such Registration Statement or any post-effective amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that each letter so furnished shall use the Prospectus (other than financial statements, the notes thereto and related schedules and other financial, statistical and accounting data included therein or omitted .therefrom, as to which such counsel need express no belief) as amended or supplemented, if applicable, as of its date and the Closing Date, contained an untrue statement of a “cut-off date” no more than five business days prior material fact or omitted to state a material fact necessary to make the date statements therein not misleading in light of such letterthe circumstances under which they were made.
Appears in 1 contract
Conditions of the Obligations of the Agent. Your obligation to solicit offers to purchase Program Securities as agent of the Company in connection with any offering of Securities and Company, your obligation to purchase Program Securities as principal pursuant to any Notes Terms Agreement or Units Terms Agreement and the obligation of any other purchaser to purchase Program Securities will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Program Securities, at the time of such solicitation and at each Time of Sale solicitation, and, in the case of your or any other purchaser’s obligation to purchase Program Securities, at the time the Company accepts the offer to purchase such Program Securities and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified belowspecified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any event or occurrence that resultschange, or would result inany development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its consolidated subsidiaries, taken as a Material Adverse Effect whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Prospectus or Time of Sale Information and that, in your reasonable judgment, is material and adverse and that makes it, in your reasonable judgment, impracticable or inadvisable to market the Program Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale InformationProspectus;
(ii) there shall not have occurred any of the following: (a) such a suspension or material limitation change in trading in securities generally on the New York Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity financial, political or crisis the effect of which shall be such economic conditions or currency exchange rates or exchange controls as to make it, would in your reasonable judgment, impracticable view be likely to prejudice materially the success of the offering and distribution of the Program Securities or inadvisable to market the Securities on the terms and dealings in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Program Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;secondary market; and
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 424 or Rule 433 under the Securities Act); and
(iv) since the date on which the Company has filed with the Commission the Company’s most recent Annual Report on Form 10-K, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Company or any of the securities of the Company or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of in Section 3(a)(62) of the Exchange Act; ;
(A) except, in each case described in paragraph (i), (ii) or (iviii) above, as disclosed to you in writing by the Company prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made or (B) unless in each case described in (ii) above, the relevant event shall have occurred and been known to you prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made.
(b) If On the Commencement Date and, if called for by any Notes Terms Agreement or Units Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of Xxxxx Xxxx & Xxxxxxxx LLP, special counsel to the Company’s , or of other counsel (which satisfactory to you and who may be internal counselan officer of the Company, to the following effect that:
(A) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(B) the Company has the corporate power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such form qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as agreed a whole;
(C) each of Xxxxxx Xxxxxxx & Co. LLC and Xxxxxx Xxxxxxx International Holdings Inc. (each a “Material Subsidiary”) is validly existing as a limited liability company or corporation, as applicable, in good standing under the laws of the jurisdiction of its formation or incorporation, as applicable, has the power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole;
(D) each of the Company and its Material Subsidiaries has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, except to the extent that the failure to obtain or file would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole;
(E) each of this Agreement and any applicable Written Notes Terms Agreement or Written Units Terms Agreement has been duly authorized, executed and delivered by the Company;
(F) each Indenture has been duly qualified under the Trust Indenture Act and each of the Senior Debt Indenture, the Subordinated Debt Indenture, the Unit Agreement, the Unit Agreement Without Holders’ Obligations, the Warrant Agreement and the ICSD Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the AgentCompany, which may be enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to the effect set forth in Exhibit D.of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above;
(iiG) The opinionthe forms of Notes (including the forms of Indenture Pre-paid Purchase Contracts), whether issued alone or as part of a Unit, have been duly authorized and established in conformity with the provisions of the relevant Indenture and [certain terms of the Notes have been established pursuant to resolutions of the Board of Directors of the Company and Officer’s Certificates (as defined in the Indentures) dated as the date of such dateopinion and, when such other terms as are to be established by the officers of Agent’s counsel in the Company given authority to do so by the Board of Directors shall have been established, all such form as agreed to terms will have been duly authorized by the Company and will have been established in conformity with the Agent, which may be to the effect set forth in Exhibit E.
(c) If called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received a certificate provisions of the Company, dated such Settlement Date, and signed by an officer relevant Indenture,]1 [the terms of the Notes have been established pursuant to resolutions of the Board of Directors of the Company who is and all such terms have been duly authorized to make by the statement set forth therein (Company and have been established in conformity with the provisions 1 To be included in an “Authorized Officer”), to opinion delivered on the effect set forth in subparagraph (a)(iv) above, and to the effect that the representations and warranties Commencement Date. of the relevant Indenture,]2 and, if the Notes and the Indenture Pre-paid Purchase Contracts had been executed by the Company contained and authenticated by the relevant Trustee or its duly appointed agent, and, if the Notes were issued in this Agreement are true and correct as of such date.
(d) If called for NGN form or issued under the NSS, had been properly effectuated by any Terms Agreementthe CSK, on the date of such Terms Agreement opinion in accordance with the provisions of the relevant Indenture, all conditions precedent provided for in the applicable Indenture that relate to the authentication and corresponding Settlement Date, delivery of the Company’s independent auditors shall Notes and the Indenture Pre-paid Purchase Contracts would have furnished been complied with and if the Notes and Indenture Pre-paid Purchase Contracts had been delivered to you a letter or letters, dated as of and duly paid for by the purchasers thereof on the date of such Terms Agreement or opinion, such Settlement Date, as Notes and the case may be, in form Indenture Pre-paid Purchase Contracts would be entitled to the benefits of such Indenture and substance satisfactory to you containing statements would be valid and information binding obligations of the type ordinarily included Company, enforceable in accountantsaccordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ “comfort letters” to underwriters with respect rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to the financial statements effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above;
(H) the forms of Units under the Unit Agreement, including the forms of Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase Contracts, have been duly authorized and established in conformity with the provisions of the Unit Agreement and [certain financial information contained terms of those Purchase Contracts have been established pursuant to resolutions of the Board of Directors of the Company and Officer’s Certificates (as defined in or incorporated by reference into the Prospectus, as then amended or supplemented; provided that each letter so furnished shall use a “cut-off date” no more than five business days prior to Unit Agreement) dated the date of such letter.opinion and, when such other terms as are to be established by the officers of the Company given authority to do so by the Board of Directors shall have been established, all such terms will have been duly authorized by the Company and will have been established in conformity with the provisions of the Unit Agreement]1 [the terms of those Purchase Contracts have been established pursuant to resolutions of the Board of Directors of the Company and all such terms have been duly authorized by the Company and have been established in conformity with the provisions of the Unit Agreement]2. If such Units (including the Physically-settled Pre-paid Purchase Contracts and the Non-Pre-paid Purchase Contracts contained therein) had been delivered (and any Purchase Contracts included therein had been executed by the Company and countersigned by the Unit Agent) on the date of such opinion, all conditions precedent provided for in the Unit Agreement that relate to the delivery of the Units and the countersignature and execution of the Purchase Contracts would have
Appears in 1 contract
Samples: Euro Distribution Agreement (Morgan Stanley Capital Trust XII)
Conditions of the Obligations of the Agent. Your obligation to solicit offers to purchase Program Securities as agent of the Company in connection with any offering of Securities and Company, your obligation to purchase Program Securities as principal pursuant to any Notes Terms Agreement, Units Terms Agreement or Warrants Terms Agreement and the obligation of any other purchaser to purchase Program Securities will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Program Securities, at the time of such solicitation and at each Time of Sale solicitation, and, in the case of your or any other purchaser’s obligation to purchase Program Securities, at the time the Company accepts the offer to purchase such Program Securities and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified belowspecified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any event or occurrence that resultschange, or would result inany development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its consolidated subsidiaries, taken as a Material Adverse Effect whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Prospectus or Time of Sale Information and that, in your reasonable judgment, is material and adverse and that makes it, in your reasonable judgment, impracticable or inadvisable to market the Program Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale InformationProspectus;
(ii) there shall not have occurred any (A) suspension or material limitation of trading generally on or by, as so amended the case may be, any of the New York Stock Exchange, the NYSE Amex LLC, The NASDAQ Stock Market LLC, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or supplementedthe Chicago Board of Trade, (B) suspension of trading of any securities of the Company on any exchange or in any over the counter market, (C) material disruption in securities settlement, payment or clearance services in the United States or, in the event of a global offering, in any relevant foreign jurisdiction, (D) declaration of any moratorium on commercial banking activities by Federal or New York State authorities or (E) any outbreak or escalation of hostilities or any change in financial markets (or, if the relevant Program Securities are denominated in a currency other than U.S. dollars, any change in currency exchange rates or controls) or any calamity or crisis that, in your judgment, is material and adverse and which, singly or together with any other event specified in this clause (E), makes it, in your judgment, impracticable or inadvisable to proceed with the purchase offer, sale or delivery of the Program Securities on the terms and in the manner contemplated in the Prospectus or the Time of Sale Information;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock ExchangeProspectus; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your reasonable judgment, impracticable or inadvisable to market the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;and
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 424 or Rule 433 under the Securities Act); and
(iv) since the date on which the Company has filed with the Commission the Company’s most recent Annual Report on Form 10-K, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Company or any of the securities of the Company or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of in Section 3(a)(62) of the Exchange Act; ;
(A) except, in each case described in paragraph (i), (ii) or (iviii) above, as disclosed to you in writing by the Company prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made or (B) unless in each case described in (ii) above, the relevant event shall have occurred and been known to you prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made.
(b) If On the Commencement Date and, if called for by any Notes Terms Agreement, Units Terms Agreement or Warrants Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of Xxxxx Xxxx & Xxxxxxxx LLP, special counsel to the Company’s , or of other counsel (which satisfactory to you and who may be internal counselan officer of the Company, to the following effect that:
(A) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(B) the Company has the corporate power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such form qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as agreed a whole;
(C) each of Xxxxxx Xxxxxxx & Co. LLC and Xxxxxx Xxxxxxx International Holdings Inc. (each a “Material Subsidiary”) is validly existing as a limited liability company or corporation, as applicable, in good standing under the laws of the jurisdiction of its formation or incorporation, as applicable, has the power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole;
(D) each of the Company and its Material Subsidiaries has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, except to the extent that the failure to obtain or file would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole;
(E) each of this Agreement and any applicable Written Notes Terms Agreement, Written Units Terms Agreement or Written Warrants Terms Agreement has been duly authorized, executed and delivered by the Company;
(F) each Indenture has been duly qualified under the Trust Indenture Act and each of the Senior Debt Indenture, the Subordinated Debt Indenture, the Unit Agreement, the Unit Agreement Without Holders’ Obligations and the Warrant Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the AgentCompany, which may be enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to the effect set forth in Exhibit D.of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above;
(iiG) The opinionthe forms of Notes (including the forms of Indenture Pre-paid Purchase Contracts), whether issued alone or as part of a Unit, have been duly authorized and established in conformity with the provisions of the relevant Indenture and [certain terms of the Notes have been established pursuant to resolutions of the Board of Directors of the Company and Officer’s Certificates (as defined in the Indentures) dated as the date of such dateopinion and, when such other terms as are to be established by the officers of Agent’s counsel in the Company given authority to do so by the Board of Directors shall have been established, all such form as agreed to terms will have been duly authorized by the Company and will have been established in conformity with the Agent, which may be to the effect set forth in Exhibit E.
(c) If called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received a certificate provisions of the Company, dated such Settlement Date, and signed by an officer relevant Indenture,]1[the terms of the Notes have been established pursuant to resolutions of the Board of Directors of the Company who is and all such terms have been duly authorized to make by the statement set forth therein (an “Authorized Officer”), to Company and have been established in conformity with the effect set forth in subparagraph (a)(iv) above, and to the effect that the representations and warranties provisions of the relevant Indenture,]2 and, if the Notes and the Indenture Pre-paid Purchase Contracts had been executed by the Company contained in this Agreement are true and correct as of such date.
(d) If called for authenticated by any Terms Agreement, the relevant Trustee or its duly appointed agent on the date of such Terms Agreement and corresponding Settlement Date, opinion in accordance with the Company’s independent auditors shall have furnished to you a letter or letters, dated as provisions of the date of such Terms Agreement or such Settlement Daterelevant Indenture, as all conditions precedent provided for in the case may be, in form applicable Indenture that relate to the authentication and substance satisfactory to you containing statements and information delivery of the type ordinarily Notes and the Indenture Pre-paid Purchase Contracts would have been complied with and if the Notes and 1 To be included in accountants’ “comfort letters” to underwriters with respect to an opinion delivered on the financial statements and certain financial information contained in or incorporated by reference into the Prospectus, as then amended or supplemented; provided that each letter so furnished shall use a “cut-off date” no more than five business days prior to the date of such letterCommencement Date.
Appears in 1 contract
Samples: u.s. Distribution Agreement (Morgan Stanley Capital Trust XII)
Conditions of the Obligations of the Agent. Your obligation to solicit offers to purchase Program Securities as agent of the Company in connection with any offering of Securities and Company, your obligation to purchase Program Securities as principal pursuant to any Notes Terms Agreement, Units Terms Agreement or Warrants Terms Agreement and the obligation of any other purchaser to purchase Program Securities will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Program Securities, at the time of such solicitation and at each Time of Sale solicitation, and, in the case of your or any other purchaser’s obligation to purchase Program Securities, at the time the Company accepts the offer to purchase such Program Securities and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified belowspecified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any event or occurrence that resultschange, or would result inany development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its consolidated subsidiaries, taken as a Material Adverse Effect whole, from that set forth in the Prospectus or Time of Sale Information, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Prospectus or Time of Sale Information and that, in your reasonable judgment, is material and adverse and that makes it, in your reasonable judgment, impracticable or inadvisable to market the Program Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale InformationProspectus;
(ii) there shall not have occurred any (A) suspension or material limitation of trading generally on or by, as so amended the case may be, any of the New York Stock Exchange, the NYSE MKT LLC, The NASDAQ Stock Market LLC, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or supplementedthe Chicago Board of Trade, (B) suspension of trading of any securities of the Company on any exchange or in any over the counter market, (C) material disruption in securities settlement, payment or clearance services in the United States or, in the event of a global offering, in any relevant foreign jurisdiction, (D) declaration of any moratorium on commercial banking activities by Federal or New York State authorities or (E) any outbreak or escalation of hostilities or any change in financial markets (or, if the relevant Program Securities are denominated in a currency other than U.S. dollars, any change in currency exchange rates or controls) or any calamity or crisis that, in your judgment, is material and adverse and which, singly or together with any other event specified in this clause (E), makes it, in your judgment, impracticable or inadvisable to proceed with the purchase offer, sale or delivery of the Program Securities on the terms and in the manner contemplated in the Prospectus or the Time of Sale Information;
(ii) there shall not have occurred any of the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock ExchangeProspectus; (b) a general moratorium on commercial banking activities in New York or London declared by the relevant regulatory authorities; and (c) any outbreak or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be such as to make it, in your reasonable judgment, impracticable or inadvisable to market the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;and
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Information, to the extent required by Rule 424 or Rule 433 under the Securities Act); and
(iv) since the date on which the Company has filed with the Commission the Company’s most recent Annual Report on Form 10-K, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the long-term senior unsecured debt rating accorded the Company or any of the securities of the Company or in the rating outlook for the Company by any “nationally recognized statistical rating organization,” as such term is defined for purposes of in Section 3(a)(62) of the Exchange Act; , or Rating and Investment Information, Inc.;
(A) except, in each case described in paragraph (i), (ii) or (iviii) above, as disclosed to you in writing by the Company prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made or (B) unless in each case described in (ii) above, the relevant event shall have occurred and been known to you prior to such solicitation or, in the case of a purchase of Program Securities, before the offer to purchase such Program Securities was made.
(b) If On the Commencement Date and, if called for by any Notes Terms Agreement, Units Terms Agreement or Warrants Terms Agreement, on the corresponding Settlement Date, you shall have received:
(i) The opinion, dated as of such date, of Dxxxx Xxxx & Wxxxxxxx LLP, special counsel to the Company’s , or of other counsel (which satisfactory to you and who may be internal an officer of the Company, to the effect that:
(A) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended;
(B) the Company has the corporate power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole;
(C) each of Mxxxxx Sxxxxxx & Co. LLC and Mxxxxx Sxxxxxx International Holdings Inc. is validly existing as a limited liability company or corporation, as applicable, in good standing under the laws of the jurisdiction of its formation or incorporation, as applicable, has the power and authority to own its property and to conduct its business as described in the Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if applicable, and, to the best of such counsel’s knowledge, is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole;
(D) each of the Company and, to the best of such counsel’s knowledge, Mxxxxx Sxxxxxx & Co. LLC and Mxxxxx Sxxxxxx International Holdings Inc. has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in such form the manner described in the Prospectus, as agreed amended or supplemented, and the Time of Sale Prospectus, if applicable, except to the extent that the failure to obtain or file would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole;
(E) each of this Agreement and any applicable Written Notes Terms Agreement, Written Units Terms Agreement or Written Warrants Terms Agreement has been duly authorized, executed and delivered by the Company;
(F) each Indenture has been duly qualified under the Trust Indenture Act and each of the Senior Debt Indenture, the Subordinated Debt Indenture, the Unit Agreement, the Unit Agreement Without Holders’ Obligations and the Warrant Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the AgentCompany, which may be enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to the effect set forth in Exhibit D.of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above;
(iiG) The opinionthe forms of Notes (including the forms of Indenture Pre-paid Purchase Contracts), whether issued alone or as part of a Unit, have been duly authorized and established in conformity with the provisions of the relevant Indenture and [certain terms of the Notes have been established pursuant to resolutions of the Board of Directors of the Company and Officer’s Certificates (as defined in the Indentures) dated as the date of such dateopinion and, when such other terms as are to be established by the officers of Agent’s counsel in the Company given authority to do so by the Board of Directors shall have been established, all such form as agreed to terms will have been duly authorized by the Company and will have been established in conformity with the Agent, which may be to the effect set forth in Exhibit E.
(c) If called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received a certificate provisions of the Company, dated such Settlement Date, and signed by an officer relevant Indenture,]1[the terms of the Notes have been established pursuant to resolutions of the Board of Directors of the Company who is and all such terms have been duly authorized to make by the statement set forth therein (an “Authorized Officer”), to Company and have been established in conformity with the effect set forth in subparagraph (a)(iv) above, and to the effect that the representations and warranties provisions of the relevant Indenture,]2 and, if the Notes and the Indenture Pre-paid Purchase Contracts had been executed by the Company contained in this Agreement are true and correct as of such date.
(d) If called for authenticated by any Terms Agreement, the relevant Trustee or its duly appointed agent on the date of such Terms Agreement opinion in accordance with the provisions of the relevant Indenture, all conditions precedent provided for in the applicable Indenture that relate to the authentication and corresponding Settlement Date, delivery of the Company’s independent auditors shall Notes and the Indenture Pre-paid Purchase Contracts would have furnished been complied with and if the Notes and Indenture Pre-paid Purchase Contracts had been delivered to you a letter or letters, dated as of and duly paid for by the purchasers thereof on the date of such Terms Agreement or opinion, such Settlement Date, as Notes and the case may be, in form Indenture Pre-paid Purchase Contracts would be entitled to the benefits of such Indenture and substance satisfactory to you containing statements would be valid and information binding obligations of the type ordinarily included Company, enforceable in accountantsaccordance with their respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ “comfort letters” to underwriters with respect rights generally, concepts of reasonableness and equitable principles of general applicability (including, without limitation, concepts of good faith, fair dealing and the lack of bad faith), provided that such counsel need not express an opinion as to the financial statements effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above;
(H) the forms of Units under the Unit Agreement, including the forms of Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase Contracts, have been duly authorized and established in conformity with the provisions of the Unit Agreement and [certain financial information contained terms of those Purchase Contracts have been established pursuant to resolutions of the Board of Directors of the Company and Officer’s Certificates (as defined in or incorporated by reference into the Prospectus, as then amended or supplemented; provided that each letter so furnished shall use a “cut-off date” no more than five business days prior to Unit Agreement) dated the date of such letteropinion and, when such other terms as are to be established by the officers of the Company given authority to do so by the Board of Directors shall have been established, all such terms will have been duly authorized by the Company and will have been established in conformity with the provisions of the Unit Agreement]1 [the terms of those Purchase Contracts have been 1 To be included in an opinion delivered on the Commencement Date.
Appears in 1 contract
Samples: u.s. Distribution Agreement (Morgan Stanley Capital Trust XII)
Conditions of the Obligations of the Agent. Your The obligation of any Agent, as agent of the Company, at any time (“Solicitation Time”) to solicit offers to purchase Securities as agent of the Company in connection with any offering of Securities and your the obligation of any Agent to purchase Securities as principal principal, pursuant to any Terms Agreement will or otherwise, shall in each case be subject subject, in the Agent’s discretion, to the accuracy of the condition that all representations and warranties on the part and other statements of the Company herein, to the accuracy of the statements of the Company’s officers made in each certificate furnished pursuant to the provisions hereof and to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of your obligation to solicit offers to purchase Securities, at the time of such solicitation and at each Time of Sale and, in the case of your an obligation to purchase Securitiesof the Agent under a Terms Agreement, in or incorporated by reference in such Terms Agreement) are true and correct at the time the Company accepts the offer to purchase such Securities and at the time of issuance and delivery) and (in each case) to the following additional conditions precedent when and as specified below:
(aof the Commencement Date and any applicable date referred to in Section 4(k) Prior hereof that is prior to such solicitation Solicitation Time or purchaseTime of Delivery, as the case may be, and at and as of such Solicitation Time or Time of Delivery, as the case may be, the condition that prior to such Solicitation Time or Time of Delivery, as the case may be, the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The counsel to the Agent shall have furnished to the Agent (i) there shall not have occurred any event such opinion or occurrence that resultsopinions, or would result indated the Commencement Date, a Material Adverse Effect from that set forth in with respect to such matters as the Prospectus or Time of Sale InformationAgent may reasonably request, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, that is not described in the Prospectus or Time of Sale Information and that, in your reasonable judgment, is material and adverse and that makes it, in your reasonable judgment, impracticable or inadvisable to market the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale Information, as so amended or supplemented, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(ii) there shall not have occurred any of if and to the following: (a) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (b) a general moratorium on commercial banking activities in New York or London declared extent requested by the relevant regulatory authorities; and (cAgent, with respect to each applicable date referred to in Section 4(i) any outbreak hereof that is on or material escalation of hostilities or other national or international calamity or crisis the effect of which shall be prior to such as to make it, in your reasonable judgment, impracticable or inadvisable to market the Securities on the terms and in the manner contemplated by the Prospectus or Time of Sale InformationDelivery, as so amended an opinion or supplementedopinions, or to proceed with the purchase of the Securities on the terms and in the manner contemplated in the Prospectus or Time of Sale Information;
(iii) the Prospectus, each Free Writing Prospectus and all other Time of Sale Information shall have been timely filed with the Commission under the Securities Act (in the case of a Free Writing Prospectus and all other Time of Sale Informationdated such applicable date, to the effect that the Agent may rely on the opinion or opinions which were last furnished to the Agent pursuant to this Section 6(a) to the same extent required by Rule 424 as though it or Rule 433 under the Securities Act); and
(iv) since they were dated the date on which of such letter authorizing reliance (except that the Company has filed with statements in such last opinion or opinions shall be deemed to relate to the Commission Registration Statement, the Company’s most recent Annual Report on Form 10-K, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction Disclosure Package as of the possible changeApplicable Time and the Prospectus) or, in the long-term senior unsecured debt rating accorded the Company by any “nationally recognized statistical rating organization,” as lieu of such term is defined for purposes of Section 3(a)(62) an opinion or opinions, an opinion or opinions of the Exchange Actsame tenor as the opinion or opinions referred to in clause (i) but modified to relate to the Registration Statement, the Disclosure Package as of the Applicable Time and the Prospectus; except, and in each case described in paragraph (i), (ii) or (iv) above, such counsel shall have received such papers and information as disclosed they may reasonably request to you in writing by the Company prior enable them to pass upon such solicitation or, in the case of a purchase of Securities, before the offer to purchase such Securities was madematters.
(b) If called (A) Dxxxx Xxxx & Wxxxxxxx LLP, special counsel for by any Terms Agreementthe Company, on or other counsel for the corresponding Settlement DateCompany approved as satisfactory to the Agent (provided that such approval shall not be unreasonably withheld), you shall have received:
furnished to the Agent their written opinions (i) The opinion, dated as of such date, of the Company’s counsel (which may be internal counsel) in such form as agreed to by the Company and the Agent, which may be substantially to the effect set forth in Exhibit D.
(iiA) The opinionand customary disclosure letter, each dated as the Commencement Date and dated each applicable date referred to in Section 4(j) hereof that is on or prior to such Solicitation Time or Time of such date, of Agent’s counsel in such form as agreed to by the Company and the Agent, which may be to the effect set forth in Exhibit E.
(c) If called for by any Terms Agreement, on the corresponding Settlement Date, you shall have received a certificate of the Company, dated such Settlement Date, and signed by an officer of the Company who is duly authorized to make the statement set forth therein (an “Authorized Officer”), to the effect set forth in subparagraph (a)(iv) above, and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of such date.
(d) If called for by any Terms Agreement, on the date of such Terms Agreement and corresponding Settlement Date, the Company’s independent auditors shall have furnished to you a letter or letters, dated as of the date of such Terms Agreement or such Settlement DateDelivery, as the case may be, each in form and substance satisfactory to you containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus, as then amended or supplemented; provided that each letter so furnished shall use a “cut-off date” no more than five business days prior to the date of such letterAgent.
Appears in 1 contract
Samples: Distribution Agreement (Bbva Compass Bancshares, Inc)
