Conditions of the Obligations of the Underwriters and the Forward Sellers. The obligations of the Forward Sellers hereunder to sell and deliver the Borrowed Firm Shares and the Borrowed Additional Shares and of the Underwriters hereunder to purchase and pay for the Shares, in each case on the Closing Date or on each Option Closing Date, as applicable, are subject to the following further conditions: (i) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); and any material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 and (ii) any request of the Commission for additional information (to be included in the Registration Statement, the Disclosure Package or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representatives. (b) Subsequent to the Applicable Time, or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto), the Disclosure Package and the Prospectus (exclusive of any amendment thereof), there shall not have occurred any event or development relating to or involving the Company and its subsidiaries or any officer or director of the Company and its subsidiaries which makes any statement made in the Disclosure Package or the Prospectus untrue or which, in the opinion of the Company and its counsel or the Representatives and counsel to the Underwriters, requires the making of any addition to or change in the Disclosure Package in order to state a material fact required by the Act or any other law to be stated therein, or necessary in order to make the statements therein not misleading, if amending or supplementing the Disclosure Package to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Shares. (c) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion and negative assurance letter included therewith, and tax opinion of Hxxxxxxx LLP, counsel for the Company, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties, in form and substance acceptable to the Representatives, the Forward Sellers and the Forward Counterparties. (d) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion and negative assurance letter of Lxxxxx & Wxxxxxx LLP, counsel for the Underwriters, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties with respect to such matters as the Representatives, the Forward Sellers and the Forward Counterparties may request. (e) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion of Bxxxxxx Xxxxx LLP, Maryland counsel for the Company, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties, in form and substance acceptable to the Representatives, the Forward Sellers and the Forward Counterparties. (f) The Representatives shall have received letters addressed to the Underwriters and dated as of the date hereof, the Closing Date and on each Option Closing Date, as applicable, from Gxxxx Xxxxxxxx LLP, an independent registered public accounting firm, substantially in the form heretofore approved by the Representatives; provided that the letter delivered on the Closing Date and each Option Closing Date, as applicable, shall use a “cut-off” date no more than three (3) Business Days prior to the Closing Date or such Option Closing Date, as the case may be. (i) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission at or prior to the Closing Date and on each Option Closing Date, as applicable; (ii) there shall not have been any change in the capital stock of the Company nor any material increase in the short-term or long-term debt (including any off-balance sheet activities or transactions) of the Company and its subsidiaries (other than in the ordinary course of business) from that set forth or contemplated in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment or supplement thereto); (iii) there shall not have been, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement, the Disclosure Package and Prospectus (or any amendment or supplement thereto), any Material Adverse Effect; (iv) the Company and its subsidiaries shall not have any liabilities or obligations (financial or other), direct or contingent (whether or not in the ordinary course of business), that are material to the Company or its subsidiaries, other than those reflected in the Registration Statement or the Disclosure Package and the Prospectus (or any amendment or supplement thereto); and (v) all the representations and warranties of the Company and the Operating Partnership contained in this Agreement shall be true and correct at and as of the Applicable Time and on and as of the Closing Date and each Option Closing Date, as applicable, as if made at and as of such time or on and as of such date, and the Representatives, the Forward Sellers and the Forward Counterparties shall have received a certificate, dated the Closing Date and each Option Closing Date, as applicable, and signed by either the chief executive officer or the chief operating officer and chief financial officer of the Company (or such other officers as are acceptable to the Representatives, the Forward Sellers and the Forward Counterparties), to the effect set forth in this Section 8(g) and in Section 8(i) hereof. (h) The Company shall not have failed at or prior to the Closing Date and any Option Closing Date, as applicable, to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder, at or prior to the Closing Date and on each Option Closing Date, as applicable. (i) The Representatives, the Forward Sellers and the Forward Counterparties shall have received a certificate, dated the date hereof, the Closing Date and on each Option Closing Date, as applicable, and signed by the chief financial officer of the Company, in form and substance reasonably satisfactory to the Representatives, the Forward Sellers and the Forward Counterparties, certifying to the accuracy of certain financial information contained in the Registration Statement, the Disclosure Package and the Prospectus. (j) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (k) The Company shall have completed all required filings with the NYSE and other necessary actions in order to cause the Shares and any Confirmation Shares to be listed and admitted and authorized for trading on the NYSE, subject only to notice of issuance. (l) On or about the date of this Agreement, but in no event later than the Closing Date, the Representatives shall have received “lock-up” agreements relating to sales and certain other dispositions of shares of Common Stock or certain other securities, each substantially in the form of Exhibit B attached hereto, from the persons set forth on Schedule V attached hereto, and all of such “lock-up” agreements shall be in full force and effect at the Closing Date and on each Option Closing Date, as applicable. (m) The Company shall have furnished or caused to be furnished to the Representatives, the Forward Sellers and the Forward Counterparties such further certificates and documents as the Representatives, the Forward Sellers and the Forward Counterparties shall have reasonably requested. Any certificate or document signed by any officer of the Company or the general partner of the Operating Partnership and delivered to the Representatives, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Company or the Operating Partnership, as the case may be, to the Underwriters as to the statements made therein. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters, the Forward Sellers and their counsel, this Agreement and all obligations of the Underwriters and the Forward Sellers hereunder may be canceled by the Representatives or the Forward Sellers, as applicable, at, or at any time prior to, the Closing Date or on each Option Closing Date, as applicable, with respect to any Additional Shares remaining to be purchased. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. With respect to the Closing Date and each applicable Option Closing Date, the documents required to be delivered by this Section 8 shall be delivered at the offices of Lxxxxx & Wxxxxxx LLP, Attention: Jxxxxx Xxxxxxxxxxx and Lxxxx Xxxxx, counsel for the Underwriters, at 300 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 on or prior to such date.
Appears in 1 contract
Conditions of the Obligations of the Underwriters and the Forward Sellers. The respective obligations of the several Underwriters and of the several Forward Sellers hereunder to sell and deliver the Borrowed Firm Shares and the Borrowed Additional Shares and of the Underwriters hereunder to purchase and pay for the Shares, in each case on the Closing Date or on each Option Closing Date, as applicable, are subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of Company officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following further conditionsadditional conditions precedent:
(ia) The Prospectus, and any supplement thereto, have been filed in On the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); and any material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 and (ii) any request of the Commission for additional information (to be included in the Registration Statementdate hereof, the Disclosure Package or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Subsequent to the Applicable Time, or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto), the Disclosure Package and the Prospectus (exclusive of any amendment thereof), there shall not have occurred any event or development relating to or involving the Company and its subsidiaries or any officer or director of the Company and its subsidiaries which makes any statement made in the Disclosure Package or the Prospectus untrue or which, in the opinion of the Company and its counsel or the Representatives and counsel to the Underwriters, requires the making of any addition to or change in the Disclosure Package in order to state a material fact required by the Act or any other law to be stated therein, or necessary in order to make the statements therein not misleading, if amending or supplementing the Disclosure Package to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Shares.
(c) The Representatives, the Forward Sellers and the Forward Counterparties Purchasers shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion and negative assurance a letter included therewith, and tax opinion of Hxxxxxxx LLP, counsel for the Company, dated as of such date and addressed in a form reasonably satisfactory to the Representatives, the Forward Sellers and the Forward CounterpartiesPurchasers dated the date hereof, of Deloitte & Touche LLP, confirming that they are independent registered public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and the applicable published rules and regulations of the Public Company Accounting Oversight Board (“PCAOB”) and stating to the effect that:
(i) in their opinion, the financial statements and financial statement schedules audited by them and incorporated by reference in the Pricing Disclosure Package and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in PCAOB AU 722, Interim Financial Information, on any unaudited financial statements included in the Pricing Disclosure Package and the Prospectus;
(iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any, included in the Pricing Disclosure Package and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations or any material modifications should be made to such unaudited financial statements and summary of earnings for them to be in conformity with generally accepted accounting principles;
(B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of such letter, there was any change in the amounts of common stock, redeemable preferred stock or non-redeemable preferred stock of the Company or any increase in long-term debt of the Company or, at the date of the most recent available unaudited financial statements, there was any decrease in net current assets or common stock equity as compared with amounts shown in the most recent financial statements included in the Pricing Disclosure Package and the Prospectus, except in all cases for changes, increases or decreases that result from the declaration or payment of dividends; or
(C) for the period from the closing date of the latest income statement included in the Pricing Disclosure Package and the Prospectus to the closing date of the latest available income statement read by such accountants, there were any decreases, as compared with the corresponding period of the previous year and with the period of corresponding length ended the date of the latest income statement included in the Pricing Disclosure Package and the Prospectus, in the amounts of total revenues or net income; except in all cases set forth in clause (B) and clause (C) above for changes, increases or decreases that the Pricing Disclosure Package and the Prospectus disclose have occurred or may occur or that are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Pricing Disclosure Package and the Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in material incorporated by reference into the Pricing Disclosure Package and the Prospectus shall be deemed included in the Pricing Disclosure Package and the Prospectus for purposes of this Section 7(a).
(b) Any Preliminary Prospectus and the Prospectus shall have been timely filed with the Commission in accordance with Section 5(a). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus. No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, no proceeding or examination for such purpose or pursuant to Section 8A of the Act against the Company or related to the offering shall have been initiated or threatened by the Commission and no order directed to the adequacy of any document incorporated by reference in any Preliminary Prospectus or the Prospectus shall have been issued. Any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with or resolved to the reasonable satisfaction of the Representatives. The Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
(c) Subsequent to the execution of this Agreement and substance acceptable prior to the Closing Date, (i) there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the financial position, business or properties of the Company and its subsidiaries taken as a whole that, in the reasonable judgment of the Representatives, materially impairs the investment quality of the Shares, (ii) there shall not have occurred a suspension of trading in the Stock by the Commission or the NYSE or a suspension or material limitation in trading in securities generally on the NYSE, (iii) there shall not have occurred, in respect of the Company’s securities, any downgrading or withdrawal, nor shall any notice have been given in respect of the Company’s securities of any intended or potential downgrading or withdrawal or of any review for a possible change that does not indicate the direction of the possible change, and there shall have been no public announcement that any of the Company’s securities have been placed on CreditWatch or Watchlist or under any similar surveillance or review, in each case with negative implications, by S&P Global Ratings, a division of S&P Global Inc., Xxxxx’x Investors Service, Inc. or Fitch, Inc., (iv) there shall not have occurred a general moratorium on commercial banking activities in New York declared by either federal or State of New York authorities, (v) there shall not have occurred any material disruption of commercial banking, settlements of securities or clearance services in the United States and (vi) there shall not have occurred any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representatives, the Forward Sellers effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Forward CounterpartiesShares. If the Underwriters elect not to purchase the Shares as a result of the occurrence of one of the events specified in this Section 7(c), the Representatives will promptly notify the Company.
(d) The Representatives, the Forward Sellers and the Forward Counterparties Purchasers shall have received on an opinion and a disclosure letter from Xxxxxxxx & Xxxxxxxx LLP, counsel for the Closing Date and on each Option Company, dated the relevant Closing Date, in the forms attached as applicableExhibit G hereto.
(e) The Underwriters, the Forward Sellers and the Forward Purchasers shall have received an opinion from Xxxxx & Xxxxxx L.L.P., Arizona counsel for the Company, dated the relevant Closing Date, in the form attached as Exhibit H hereto.
(f) The Underwriters, the Forward Sellers and negative assurance letter of Lxxxxx & Wxxxxxx the Forward Purchasers shall have received from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Underwriters, an opinion or opinions, dated the relevant Closing Date, with respect to such matters as they may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such date and addressed to the Representativesmatters.
(g) The Underwriters, the Forward Sellers and the Forward Counterparties with respect to such matters as the Representatives, the Forward Sellers and the Forward Counterparties may request.
(e) The Representatives, the Forward Sellers and the Forward Counterparties Purchasers shall have received on a certificate of the Closing Date President or any Vice President and on each Option Closing Date, as applicable, an opinion a principal financial or accounting officer of Bxxxxxx Xxxxx LLP, Maryland counsel for the Company, dated the relevant Closing Date, in which such officers, to the best of their knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct as of the relevant Closing Date, or, where applicable, as of such other date specified in such representation and addressed warranty, (ii) the Company has complied with all agreements and satisfied all conditions on its part to the Representatives, the Forward Sellers and the Forward Counterparties, in form and substance acceptable be performed or satisfied pursuant to the Representatives, the Forward Sellers and the Forward Counterparties.
(f) The Representatives shall have received letters addressed this Agreement at or prior to the Underwriters and dated as of the date hereof, the Closing Date and on each Option such Closing Date, as applicable, from Gxxxx Xxxxxxxx LLP, an independent registered public accounting firm, substantially in the form heretofore approved by the Representatives; provided that the letter delivered on the Closing Date and each Option Closing Date, as applicable, shall use a “cut-off” date (iii) no more than three (3) Business Days prior to the Closing Date or such Option Closing Date, as the case may be.
(i) No stop order suspending the effectiveness of the Registration Statement shall have has been issued and issued, no proceedings or examinations for that purpose shall or pursuant to Section 8A of the Act against the Company or related to the offering have been taken instituted or, to the knowledge of the Company, shall be are contemplated by the Commission at or prior and the Commission has not notified the Company of any objection to the Closing Date use of the form of the Registration Statement or any post-effective amendment thereto and on each Option Closing Date(iv) subsequent to the date of the most recent financial statements in the Most Recent Preliminary Prospectus, as applicable; (ii) there shall not have has been any no material adverse change in or affecting the capital stock financial condition, shareholders’ equity or results of the Company nor any material increase in the short-term or long-term debt (including any off-balance sheet activities or transactions) operations of the Company and its subsidiaries (consolidated subsidiaries, taken as a whole, other than in the ordinary course of business) from that as set forth or contemplated in the Registration Statement, the Pricing Disclosure Package or the Prospectus Package.
(or any amendment or supplement thereto); (iiih) there shall not have been, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement, the Disclosure Package and Prospectus (or any amendment or supplement thereto), any Material Adverse Effect; (iv) the Company and its subsidiaries shall not have any liabilities or obligations (financial or other), direct or contingent (whether or not in the ordinary course of business), that are material to the Company or its subsidiaries, other than those reflected in the Registration Statement or the Disclosure Package and the Prospectus (or any amendment or supplement thereto); and (v) all the representations and warranties of the Company and the Operating Partnership contained in this Agreement shall be true and correct at and as of the Applicable Time and on and as of the Closing Date and each Option Closing Date, as applicable, as if made at and as of such time or on and as of such date, and the RepresentativesThe Underwriters, the Forward Sellers and the Forward Counterparties Purchasers shall have received a certificateletter of Deloitte & Touche LLP, dated the relevant Closing Date, which meets the requirements of Section 7(a), except that the specified date referred to in Section 7(a) will be a date not more than three days prior to the Closing Date for the purposes of this Section 7(h).
(i) The Representatives shall have received signed lock-up agreements in the form attached hereto as Exhibit D hereto, dated on or prior to the date hereof, from each of the directors and executive officers of the Company (as defined under Section 16 of the Exchange Act and as set forth on Exhibit E hereto).
(j) At the First Closing Date and each Option Optional Closing Date, as applicableif any, and signed by either the chief executive officer or the chief operating officer and chief financial officer of the Company Shares and the maximum number of shares of Stock that may be issued and sold under the Forward Sale Agreements and any Additional Forward Sale Agreements shall have been approved for listing on the NYSE, subject to notice of issuance.
(or such other officers as are acceptable to k) The Company will furnish the RepresentativesUnderwriters, the Forward Sellers and the Forward Counterparties), to the effect set forth in this Section 8(g) and in Section 8(i) hereof.
(h) The Company shall not have failed at or prior to the Closing Date and any Option Closing Date, as applicable, to have performed or complied Purchasers with any of its agreements herein contained and required to be performed or complied with by it hereunder, at or prior to the Closing Date and on each Option Closing Date, as applicable.
(i) The Representatives, the Forward Sellers and the Forward Counterparties shall have received a certificate, dated the date hereof, the Closing Date and on each Option Closing Date, as applicable, and signed by the chief financial officer of the Company, in form and substance reasonably satisfactory to the Representatives, the Forward Sellers and the Forward Counterparties, certifying to the accuracy of certain financial information contained in the Registration Statement, the Disclosure Package and the Prospectus.
(j) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Company shall have completed all required filings with the NYSE and other necessary actions in order to cause the Shares and any Confirmation Shares to be listed and admitted and authorized for trading on the NYSE, subject only to notice of issuance.
(l) On or about the date of this Agreement, but in no event later than the Closing Date, the Representatives shall have received “lock-up” agreements relating to sales and certain other dispositions of shares of Common Stock or certain other securities, each substantially in the form of Exhibit B attached hereto, from the persons set forth on Schedule V attached hereto, and all conformed copies of such “lock-up” agreements shall be in full force and effect at the Closing Date and on each Option Closing Dateopinions, as applicable.
(m) The Company shall have furnished or caused to be furnished to the Representativescertificates, the Forward Sellers and the Forward Counterparties such further certificates letters and documents as the Representatives, the Forward Sellers and the Forward Counterparties shall have may be reasonably requested. Any certificate or document signed by any officer of the Company or the general partner of the Operating Partnership and delivered to the Representatives, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Company or the Operating Partnership, as the case may be, to the Underwriters as to the statements made therein. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters, the Forward Sellers and their counsel, this Agreement and all obligations of the Underwriters and the Forward Sellers hereunder may be canceled by the Representatives or the Forward Sellers, as applicable, at, or at any time prior to, the Closing Date or on each Option Closing Date, as applicable, with respect to any Additional Shares remaining to be purchased. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. With respect to the Closing Date and each applicable Option Closing Date, the documents required to be delivered by this Section 8 shall be delivered at the offices of Lxxxxx & Wxxxxxx LLP, Attention: Jxxxxx Xxxxxxxxxxx and Lxxxx Xxxxx, counsel for the Underwriters, at 300 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 on or prior to such date.
Appears in 1 contract
Samples: Underwriting Agreement (Pinnacle West Capital Corp)
Conditions of the Obligations of the Underwriters and the Forward Sellers. The obligations of the Forward Sellers hereunder to sell and deliver the Borrowed Firm Shares and the Borrowed Additional Shares and of the Underwriters hereunder to purchase and pay for the Shares, in each case on the Closing Date or on each Option Closing Date, as applicable, are subject to the following further conditions:
(i) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); and any material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 and (ii) any request of the Commission for additional information (to be included in the Registration Statement, the Disclosure Package or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Subsequent to the Applicable Time, or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto), the Disclosure Package and the Prospectus (exclusive of any amendment thereof), there shall not have occurred any event or development relating to or involving the Company and its subsidiaries or any officer or director of the Company and its subsidiaries which makes any statement made in the Disclosure Package or the Prospectus untrue or which, in the opinion of the Company and its counsel or the Representatives and counsel to the Underwriters, requires the making of any addition to or change in the Disclosure Package in order to state a material fact required by the Act or any other law to be stated therein, or necessary in order to make the statements therein not misleading, if amending or supplementing the Disclosure Package to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Shares.
(c) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion and negative assurance letter included therewith, and tax opinion of Hxxxxxxx LLP, counsel for the Company, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties, in form and substance acceptable to the Representativeseffect set forth on Exhibit C and Exhibit D, the Forward Sellers and the Forward Counterpartiesrespectively.
(d) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion and negative assurance letter of Lxxxxx & Wxxxxxx Hunton Axxxxxx Xxxxx LLP, counsel for the Underwriters, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties with respect to such matters as the Representatives, the Forward Sellers and the Forward Counterparties may request.
(e) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion of Bxxxxxx Xxxxx LLP, Maryland counsel for the Company, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties, in form and substance acceptable to the Representatives, the Forward Sellers and the Forward Counterparties.effect set forth on Exhibit E.
(f) The Representatives shall have received letters addressed to the Underwriters and dated as of the date hereof, the Closing Date and on each Option Closing Date, as applicable, from Gxxxx Xxxxxxxx LLP, an independent registered public accounting firm, substantially in the form heretofore approved by the Representatives; provided that the letter delivered on the Closing Date and each Option Closing Date, as applicable, shall use a “cut-off” date no more than three (3) Business Days prior to the Closing Date or such Option Closing Date, as the case may be.
(g) (i) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission at or prior to the Closing Date and on each Option Closing Date, as applicable; (ii) there shall not have been any change in the capital stock of the Company nor any material increase in the short-term or long-term debt (including any off-balance sheet activities or transactions) of the Company and its subsidiaries (other than in the ordinary course of business) from that set forth or contemplated in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment or supplement thereto); (iii) there shall not have been, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement, the Disclosure Package and Prospectus (or any amendment or supplement thereto), any Material Adverse Effect; (iv) the Company and its subsidiaries shall not have any liabilities or obligations (financial or other), direct or contingent (whether or not in the ordinary course of business), that are material to the Company or its subsidiaries, other than those reflected in the Registration Statement or the Disclosure Package and the Prospectus (or any amendment or supplement thereto); and (v) all the representations and warranties of the Company and the Operating Partnership contained in this Agreement shall be true and correct at and as of the Applicable Time and on and as of the Closing Date and each Option Closing Date, as applicable, as if made at and as of such time or on and as of such date, and the Representatives, the Forward Sellers and the Forward Counterparties shall have received a certificate, dated the Closing Date and each Option Closing Date, as applicable, and signed by either the chief executive officer or the chief operating officer and chief financial officer of the Company (or such other officers as are acceptable to the Representatives, the Forward Sellers and the Forward Counterparties), to the effect set forth in this Section 8(g) and in Section 8(i) hereof.
(h) The Company shall not have failed at or prior to the Closing Date and any Option Closing Date, as applicable, to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder, at or prior to the Closing Date and on each Option Closing Date, as applicable.
(i) The Representatives, the Forward Sellers and the Forward Counterparties shall have received a certificate, dated the date hereof, the Closing Date and on each Option Closing Date, as applicable, and signed by the chief financial officer of the Company, in form and substance reasonably satisfactory to the Representatives, the Forward Sellers and the Forward Counterparties, certifying to the accuracy of certain financial information contained in the Registration Statement, the Disclosure Package and the Prospectus.
(j) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Company shall have completed all required filings with the NYSE and other necessary actions in order to cause the Shares and any Confirmation Shares to be listed and admitted and authorized for trading on the NYSE, subject only to notice of issuance.
(l) On or about the date of this Agreement, but in no event later than the Closing Date, the Representatives shall have received “lock-up” agreements relating to sales and certain other dispositions of shares of Common Stock or certain other securities, each substantially in the form of Exhibit B attached hereto, from the persons set forth on Schedule V attached hereto, and all of such “lock-up” agreements shall be in full force and effect at the Closing Date and on each Option Closing Date, as applicable.
(m) The Company shall have furnished or caused to be furnished to the Representatives, the Forward Sellers and the Forward Counterparties such further certificates and documents as the Representatives, the Forward Sellers and the Forward Counterparties shall have reasonably requested. Any certificate or document signed by any officer of the Company or the general partner of the Operating Partnership and delivered to the Representatives, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Company or the Operating Partnership, as the case may be, to the Underwriters as to the statements made therein. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters, the Forward Sellers and their counsel, this Agreement and all obligations of the Underwriters and the Forward Sellers hereunder may be canceled by the Representatives or the Forward Sellers, as applicable, at, or at any time prior to, the Closing Date or on each Option Closing Date, as applicable, with respect to any Additional Shares remaining to be purchased. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. With respect to the Closing Date and each applicable Option Closing Date, the documents required to be delivered by this Section 8 shall be delivered at the offices of Lxxxxx & Wxxxxxx Hunton Axxxxxx Xxxxx LLP, Attention: Jxxxxx Xxxxxxxxxxx and Lxxxx XxxxxMxxx X. Xxxxxxxxxx, counsel for the Underwriters, at 300 Xxxxx Xxxxx Riverfront Plaza, East Tower, 900 Xxxx Xxxxxx, Xxxxx 000Richmond, Xxx Xxxxxxx, Xxxxxxxxxx 00000 Virginia 23219 on or prior to such date.
Appears in 1 contract
Conditions of the Obligations of the Underwriters and the Forward Sellers. The obligations of the Forward Sellers hereunder to sell and deliver the Borrowed Firm Shares and the Borrowed Additional Shares and of the Underwriters hereunder to purchase and pay for the Shares, in each case on the Closing Date or on each Option Closing Date, as applicable, are subject to the following further conditions:
(i) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); and any material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 and (ii) any request of the Commission for additional information (to be included in the Registration Statement, the Disclosure Package or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Subsequent to the Applicable Time, or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto), the Disclosure Package and the Prospectus (exclusive of any amendment thereof), there shall not have occurred any event or development relating to or involving the Company and its subsidiaries or any officer or director of the Company and its subsidiaries which makes any statement made in the Disclosure Package or the Prospectus untrue or which, in the opinion of the Company and its counsel or the Representatives and counsel to the Underwriters, requires the making of any addition to or change in the Disclosure Package in order to state a material fact required by the Act or any other law to be stated therein, or necessary in order to make the statements therein not misleading, if amending or supplementing the Disclosure Package to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Shares.
(c) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion and negative assurance letter included therewith, and tax opinion of Hxxxxxxx LLP, counsel for the Company, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties, in form and substance acceptable to the Representatives, the Forward Sellers and the Forward Counterparties.
(d) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion and negative assurance letter of Lxxxxx & Wxxxxxx LLP, counsel for the Underwriters, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties with respect to such matters as the Representatives, the Forward Sellers and the Forward Counterparties may request.
(e) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion of Bxxxxxx Xxxxx LLP, Maryland counsel for the Company, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties, in form and substance acceptable to the Representatives, the Forward Sellers and the Forward Counterparties.effect set forth on Exhibit C.
(f) The Representatives shall have received letters addressed to the Underwriters and dated as of the date hereof, the Closing Date and on each Option Closing Date, as applicable, from Gxxxx Xxxxxxxx LLP, an independent registered public accounting firm, substantially in the form heretofore approved by the Representatives; provided that the letter delivered on the Closing Date and each Option Closing Date, as applicable, shall use a “cut-off” date no more than three (3) Business Days prior to the Closing Date or such Option Closing Date, as the case may be.
(i) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission at or prior to the Closing Date and on each Option Closing Date, as applicable; (ii) there shall not have been any change in the capital stock of the Company nor any material increase in the short-term or long-term debt (including any off-balance sheet activities or transactions) of the Company and its subsidiaries (other than in the ordinary course of business) from that set forth or contemplated in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment or supplement thereto); (iii) there shall not have been, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement, the Disclosure Package and Prospectus (or any amendment or supplement thereto), any Material Adverse Effect; (iv) the Company and its subsidiaries shall not have any liabilities or obligations (financial or other), direct or contingent (whether or not in the ordinary course of business), that are material to the Company or its subsidiaries, other than those reflected in the Registration Statement or the Disclosure Package and the Prospectus (or any amendment or supplement thereto); and (v) all the representations and warranties of the Company and the Operating Partnership contained in this Agreement shall be true and correct at and as of the Applicable Time and on and as of the Closing Date and each Option Closing Date, as applicable, as if made at and as of such time or on and as of such date, and the Representatives, the Forward Sellers and the Forward Counterparties shall have received a certificate, dated the Closing Date and each Option Closing Date, as applicable, and signed by either the chief executive officer or the chief operating officer and chief financial officer of the Company (or such other officers as are acceptable to the Representatives, the Forward Sellers and the Forward Counterparties), to the effect set forth in this Section 8(g) and in Section 8(i) hereof.
(h) The Company shall not have failed at or prior to the Closing Date and any Option Closing Date, as applicable, to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder, at or prior to the Closing Date and on each Option Closing Date, as applicable.
(i) The Representatives, the Forward Sellers and the Forward Counterparties shall have received a certificate, dated the date hereof, the Closing Date and on each Option Closing Date, as applicable, and signed by the chief financial officer of the Company, in form and substance reasonably satisfactory to the Representatives, the Forward Sellers and the Forward Counterparties, certifying to the accuracy of certain financial information contained in the Registration Statement, the Disclosure Package and the Prospectus.
(j) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Company shall have completed all required filings with the NYSE and other necessary actions in order to cause the Shares and any Confirmation Shares to be listed and admitted and authorized for trading on the NYSE, subject only to notice of issuance.
(l) On or about the date of this Agreement, but in no event later than the Closing Date, the Representatives shall have received “lock-up” agreements relating to sales and certain other dispositions of shares of Common Stock or certain other securities, each substantially in the form of Exhibit B attached hereto, from the persons set forth on Schedule V attached hereto, and all of such “lock-up” agreements shall be in full force and effect at the Closing Date and on each Option Closing Date, as applicable.
(m) The Company shall have furnished or caused to be furnished to the Representatives, the Forward Sellers and the Forward Counterparties such further certificates and documents as the Representatives, the Forward Sellers and the Forward Counterparties shall have reasonably requested. Any certificate or document signed by any officer of the Company or the general partner of the Operating Partnership and delivered to the Representatives, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Company or the Operating Partnership, as the case may be, to the Underwriters as to the statements made therein. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters, the Forward Sellers and their counsel, this Agreement and all obligations of the Underwriters and the Forward Sellers hereunder may be canceled by the Representatives or the Forward Sellers, as applicable, at, or at any time prior to, the Closing Date or on each Option Closing Date, as applicable, with respect to any Additional Shares remaining to be purchased. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. With respect to the Closing Date and each applicable Option Closing Date, the documents required to be delivered by this Section 8 shall be delivered at the offices of Lxxxxx & Wxxxxxx LLP, Attention: Jxxxxx Xxxxxxxxxxx and Lxxxx Xxxxx, counsel for the Underwriters, at 300 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 on or prior to such date.
Appears in 1 contract
Conditions of the Obligations of the Underwriters and the Forward Sellers. The obligations of the Forward Sellers hereunder to sell and deliver the Borrowed Firm Shares and the Borrowed Additional Shares and of the Underwriters hereunder to purchase and pay for the Shares, in each case on the Closing Date or on each Option Closing Date, as applicable, are subject to the following further conditions:
(i) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); and any material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 and (ii) any request of the Commission for additional information (to be included in the Registration Statement, the Disclosure Package or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Subsequent to the Applicable Time, or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto), the Disclosure Package and the Prospectus (exclusive of any amendment thereof), there shall not have occurred any event or development relating to or involving the Company and its subsidiaries or any officer or director of the Company and its subsidiaries which makes any statement made in the Disclosure Package or the Prospectus untrue or which, in the opinion of the Company and its counsel or the Representatives and counsel to the Underwriters, requires the making of any addition to or change in the Disclosure Package in order to state a material fact required by the Act or any other law to be stated therein, or necessary in order to make the statements therein not misleading, if amending or supplementing the Disclosure Package to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Shares.
(c) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion and negative assurance letter included therewith, and tax opinion of Hxxxxxxx Xxxxxxxx LLP, counsel for the Company, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties, in form and substance acceptable to the Representativeseffect set forth on Exhibit C and Exhibit D, the Forward Sellers and the Forward Counterpartiesrespectively.
(d) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion and negative assurance letter of Lxxxxx & Wxxxxxx Hunton Xxxxxxx Xxxxx LLP, counsel for the Underwriters, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties with respect to such matters as the Representatives, the Forward Sellers and the Forward Counterparties may request.
(e) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion of Bxxxxxx Xxxxxxx Xxxxx LLP, Maryland counsel for the Company, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties, in form and substance acceptable to the Representatives, the Forward Sellers and the Forward Counterparties.effect set forth on Exhibit E.
(f) The Representatives shall have received letters addressed to the Underwriters and dated as of the date hereof, the Closing Date and on each Option Closing Date, as applicable, from Gxxxx Xxxxx Xxxxxxxx LLP, an independent registered public accounting firm, substantially in the form heretofore approved by the Representatives; provided that the letter delivered on the Closing Date and each Option Closing Date, as applicable, shall use a “cut-off” date no more than three (3) Business Days prior to the Closing Date or such Option Closing Date, as the case may be.
(g) (i) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission at or prior to the Closing Date and on each Option Closing Date, as applicable; (ii) there shall not have been any change in the capital stock of the Company nor any material increase in the short-term or long-term debt (including any off-balance sheet activities or transactions) of the Company and its subsidiaries (other than in the ordinary course of business) from that set forth or contemplated in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment or supplement thereto); (iii) there shall not have been, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement, the Disclosure Package and Prospectus (or any amendment or supplement thereto), any Material Adverse Effect; (iv) the Company and its subsidiaries shall not have any liabilities or obligations (financial or other), direct or contingent (whether or not in the ordinary course of business), that are material to the Company or its subsidiaries, other than those reflected in the Registration Statement or the Disclosure Package and the Prospectus (or any amendment or supplement thereto); and (v) all the representations and warranties of the Company and the Operating Partnership contained in this Agreement shall be true and correct at and as of the Applicable Time and on and as of the Closing Date and each Option Closing Date, as applicable, as if made at and as of such time or on and as of such date, and the Representatives, the Forward Sellers and the Forward Counterparties shall have received a certificate, dated the Closing Date and each Option Closing Date, as applicable, and signed by either the chief executive officer or the chief operating officer and chief financial officer of the Company (or such other officers as are acceptable to the Representatives, the Forward Sellers and the Forward Counterparties), to the effect set forth in this Section 8(g) and in Section 8(i) hereof.
(h) The Company shall not have failed at or prior to the Closing Date and any Option Closing Date, as applicable, to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder, at or prior to the Closing Date and on each Option Closing Date, as applicable.
(i) The Representatives, the Forward Sellers and the Forward Counterparties shall have received a certificate, dated the date hereof, the Closing Date and on each Option Closing Date, as applicable, and signed by the chief financial officer of the Company, in form and substance reasonably satisfactory to the Representatives, the Forward Sellers and the Forward Counterparties, certifying to the accuracy of certain financial information contained in the Registration Statement, the Disclosure Package and the Prospectus.
(j) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Company shall have completed all required filings with the NYSE and other necessary actions in order to cause the Shares and any Confirmation Shares to be listed and admitted and authorized for trading on the NYSE, subject only to notice of issuance.
(l) On or about the date of this Agreement, but in no event later than the Closing Date, the Representatives shall have received “lock-up” agreements relating to sales and certain other dispositions of shares of Common Stock or certain other securities, each substantially in the form of Exhibit B attached hereto, from the persons set forth on Schedule V attached hereto, and all of such “lock-up” agreements shall be in full force and effect at the Closing Date and on each Option Closing Date, as applicable.
(m) The Company shall have furnished or caused to be furnished to the Representatives, the Forward Sellers and the Forward Counterparties such further certificates and documents as the Representatives, the Forward Sellers and the Forward Counterparties shall have reasonably requested. Any certificate or document signed by any officer of the Company or the general partner of the Operating Partnership and delivered to the Representatives, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Company or the Operating Partnership, as the case may be, to the Underwriters as to the statements made therein. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters, the Forward Sellers and their counsel, this Agreement and all obligations of the Underwriters and the Forward Sellers hereunder may be canceled by the Representatives or the Forward Sellers, as applicable, at, or at any time prior to, the Closing Date or on each Option Closing Date, as applicable, with respect to any Additional Shares remaining to be purchased. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. With respect to the Closing Date and each applicable Option Closing Date, the documents required to be delivered by this Section 8 shall be delivered at the offices of Lxxxxx & Wxxxxxx Hunton Xxxxxxx Xxxxx LLP, Attention: Jxxxxx Xxxxxxxxxxx and Lxxxx XxxxxXxxx X. Xxxxxxxxxx, counsel for the Underwriters, at 300 Xxxxx Xxxxx Riverfront Plaza, East Tower, 000 Xxxx Xxxxxx, Xxxxx 000Richmond, Xxx Xxxxxxx, Xxxxxxxxxx 00000 Virginia 23219 on or prior to such date.
Appears in 1 contract
Conditions of the Obligations of the Underwriters and the Forward Sellers. The obligations of the Forward Sellers hereunder to sell and deliver the Borrowed Firm Shares and the Borrowed Additional Shares and of the Underwriters hereunder to purchase and pay for the Shares, in each case on the Closing Date or on each Option Closing Date, as applicable, are subject to the following further conditions:
(i) The Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); and any material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433 and (ii) any request of the Commission for additional information (to be included in the Registration Statement, the Disclosure Package or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Subsequent to the Applicable Time, or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereto), the Disclosure Package and the Prospectus (exclusive of any amendment thereof), there shall not have occurred any event or development relating to or involving the Company and its subsidiaries or any officer or director of the Company and its subsidiaries which makes any statement made in the Disclosure Package or the Prospectus untrue or which, in the opinion of the Company and its counsel or the Representatives and counsel to the Underwriters, requires the making of any addition to or change in the Disclosure Package in order to state a material fact required by the Act or any other law to be stated therein, or necessary in order to make the statements therein not misleading, if amending or supplementing the Disclosure Package to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Shares.
(c) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion and negative assurance letter included therewith, and tax opinion of Hxxxxxxx LLP, counsel for the Company, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties, in form and substance acceptable to the Representativeseffect set forth on Exhibit B and Exhibit C, the Forward Sellers and the Forward Counterpartiesrespectively.
(d) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion and negative assurance letter of Lxxxxx & Wxxxxxx Hunton Axxxxxx Xxxxx LLP, counsel for the Underwriters, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties with respect to such matters as the Representatives, the Forward Sellers and the Forward Counterparties may request.
(e) The Representatives, the Forward Sellers and the Forward Counterparties shall have received on the Closing Date and on each Option Closing Date, as applicable, an opinion of Bxxxxxx Xxxxx LLP, Maryland counsel for the Company, dated as of such date and addressed to the Representatives, the Forward Sellers and the Forward Counterparties, in form and substance acceptable to the Representatives, the Forward Sellers and the Forward Counterparties.effect set forth on Exhibit D.
(f) The Representatives shall have received letters addressed to the Underwriters and dated as of the date hereof, the Closing Date and on each Option Closing Date, as applicable, from Gxxxx Xxxxxxxx LLP, an independent registered public accounting firm, substantially in the form heretofore approved by the Representatives; provided that the letter delivered on the Closing Date and each Option Closing Date, as applicable, shall use a “cut-off” date no more than three (3) Business Days prior to the Closing Date or such Option Closing Date, as the case may be.
(g) (i) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission at or prior to the Closing Date and on each Option Closing Date, as applicable; (ii) there shall not have been any change in the capital stock of the Company nor any material increase in the short-term or long-term debt (including any off-balance sheet activities or transactions) of the Company and its subsidiaries (other than in the ordinary course of business) from that set forth or contemplated in the Registration Statement, the Disclosure Package or the Prospectus (or any amendment or supplement thereto); (iii) there shall not have been, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement, the Disclosure Package and Prospectus (or any amendment or supplement thereto), any Material Adverse Effect; (iv) the Company and its subsidiaries shall not have any liabilities or obligations (financial or other), direct or contingent (whether or not in the ordinary course of business), that are material to the Company or its subsidiaries, other than those reflected in the Registration Statement or the Disclosure Package and the Prospectus (or any amendment or supplement thereto); and (v) all the representations and warranties of the Company and the Operating Partnership contained in this Agreement shall be true and correct at and as of the Applicable Time and on and as of the Closing Date and each Option Closing Date, as applicable, as if made at and as of such time or on and as of such date, and the Representatives, the Forward Sellers and the Forward Counterparties shall have received a certificate, dated the Closing Date and each Option Closing Date, as applicable, and signed by either the chief executive officer or the chief operating officer and chief financial officer of the Company (or such other officers as are acceptable to the Representatives, the Forward Sellers and the Forward Counterparties), to the effect set forth in this Section 8(g) and in Section 8(i) hereof.
(h) The Company shall not have failed at or prior to the Closing Date and any Option Closing Date, as applicable, to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder, at or prior to the Closing Date and on each Option Closing Date, as applicable.
(i) The Representatives, the Forward Sellers and the Forward Counterparties shall have received a certificate, dated the date hereof, the Closing Date and on each Option Closing Date, as applicable, and signed by the chief financial officer of the Company, in form and substance reasonably satisfactory to the Representatives, the Forward Sellers and the Forward Counterparties, certifying to the accuracy of certain financial information contained in the Registration Statement, the Disclosure Package and the Prospectus.
(j) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) The Company shall have completed all required filings with the NYSE and other necessary actions in order to cause the Shares and any Confirmation Shares to be listed and admitted and authorized for trading on the NYSE, subject only to notice of issuance.
(l) On or about the date of this Agreement, but in no event later than the Closing Date, the Representatives shall have received “lock-up” agreements relating to sales and certain other dispositions of shares of Common Stock or certain other securities, each substantially in the form of Exhibit B attached hereto, from the persons set forth on Schedule V attached hereto, and all of such “lock-up” agreements shall be in full force and effect at the Closing Date and on each Option Closing Date, as applicable.[reserved]
(m) The Company shall have furnished or caused to be furnished to the Representatives, the Forward Sellers and the Forward Counterparties such further certificates and documents as the Representatives, the Forward Sellers and the Forward Counterparties shall have reasonably requested. Any certificate or document signed by any officer of the Company or the general partner of the Operating Partnership and delivered to the Representatives, or to counsel for the Underwriters, shall be deemed a representation and warranty by the Company or the Operating Partnership, as the case may be, to the Underwriters as to the statements made therein. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Underwriters, the Forward Sellers and their counsel, this Agreement and all obligations of the Underwriters and the Forward Sellers hereunder may be canceled by the Representatives or the Forward Sellers, as applicable, at, or at any time prior to, the Closing Date or on each Option Closing Date, as applicable, with respect to any Additional Shares remaining to be purchased. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. With respect to the Closing Date and each applicable Option Closing Date, the documents required to be delivered by this Section 8 shall be delivered at the offices of Lxxxxx & Wxxxxxx Hunton Axxxxxx Xxxxx LLP, Attention: Jxxxxx Xxxxxxxxxxx and Lxxxx XxxxxDxxxx X. Xxxxxx, counsel for the Underwriters, at 300 Xxxxx Xxxxx Riverfront Plaza, East Tower, 900 Xxxx Xxxxxx, Xxxxx 000Richmond, Xxx Xxxxxxx, Xxxxxxxxxx 00000 Virginia 23219 on or prior to such date.
Appears in 1 contract
