Conditions of Underwriters’ Obligation. The obligations of the Underwriters to purchase Securities pursuant to the Terms Agreement are subject to the accuracy of the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions: (a) The Company and the Guarantor shall have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement. (b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72. (c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that: (i) the representations and warranties of the Company in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that: (i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened; (iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and (iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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. (e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). (f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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. (g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 4 contracts
Samples: Terms Agreement (Companhia Vale Do Rio Doce), Underwriting Agreement (Vale Capital LTD), Terms Agreement (Vale S.A.)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase Securities pursuant to and pay for the Terms Agreement Shares are subject to the accuracy as of the date hereof, and as of each Closing Date to the continuing accuracy of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofherein, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder hereunder, and to the following further conditions:
(ai) The Company Registration Statement shall have become and remains effective under the Act and the Guarantor Underwriter shall have requested received notice thereof not later than 10:00 a.m. New York time, on the day following the date of this Agreement, or at such later time and caused on such date as to which Underwriter may agree in writing; (ii) on or prior to each Closing Date no stop order suspending the delivery effectiveness of written opinionsthe Registration Statement under the Act and any applicable state securities law shall have been issued and no proceedings for that or a similar purpose shall have been instituted or shall be pending or shall be threatened, substantially in or to the forms knowledge of the Company, contemplated by the Terms AgreementCommission or any state securities commission; (iii) no stop order suspending the effectiveness of the qualification or registration of the Shares under the securities or "blue sky" laws of any jurisdiction (whether or not a jurisdiction which you shall have specified) shall be threatened or to the knowledge of the Company contemplated by the authorities of any such jurisdiction or shall have been issued and remain in effect; (iv) any request for additional information on the part of the Commission or any such authorities shall have been complied with to the satisfaction of the Commission, such authorities and the Underwriter; and (v) after the date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriter and the Underwriter did not object thereto. If required, the Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act.
(b) The Guarantor You shall have requested and caused PricewaterhouseCoopersreceived the opinions, independent auditors for dated as of the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the each Closing Date, letters (which may refer to letters previously delivered to one or more of you)Xxxx X. Agron, dated respectively as of Esq., and Gowling Xxxxxxx Xxxxxxxxx LLP, United States and Canadian counsel for the Execution Time and as of the Closing DateCompany, respectively, in form and substance satisfactory to youthe Underwriter, confirming to the effect specified in Exhibits C and D attached hereto. The foregoing opinions shall also cover such matters incident to the transactions contemplated hereby as the Underwriter shall reasonably request. In rendering such opinions, such counsel may rely upon certificates of any officer of the Company or public officials as to matters of fact. Such counsel shall also include, or render separately, a statement to the effect that such counsel has participated in the preparation of the Registration Statement and the Prospectus and nothing has come to the attention of such counsel to lead such counsel to believe that the Registration Statement or any amendment thereto at the time it became effective under the Act and on each Closing Date contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus or any amendment or supplement thereto, as of its date on each Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading in light of the circumstances under which they were made (except, in the case of both the Registration Statement and any amendment thereto and the Prospectus and any supplement thereto, for the financial statements, notes thereto and other financial information and statistical data contained therein, as to which such counsel need express no opinion).
(c) All corporate proceedings and other legal matters relating directly or indirectly to this Agreement, the Registration Statement, the Prospectus and other related matters shall be reasonably satisfactory to the Underwriter.
(d) You shall have received a letter prior to the Effective Date and again on and as of each Closing Date from Ernst & Young, LLP, independent chartered accountants for the Company, substantially in the form and substance satisfactory to the Underwriter, stating that:
(i) they are an independent registered public accounting firm chartered accountants with respect to the Company within the meaning of the Act and the Exchange Act applicable rules and covering regulations;
(ii) the matters that are ordinarily covered financial statements and the schedules included in the Registration Statement and the Prospectus were examined by “comfort letters” drafted them and, in their opinion, comply as to form in all material respect with the applicable accounting requirements of the Act, the Rules and Regulations and instructions of the Commission with respect to Registration Statements on Form S-1;
(iii) on the basis of inquiries and procedures conducted by them (not constituting an examination in accordance with generally accepted auditing standards), including a reading of the latest available unaudited interim financial statements or other financial information of the Company (with an indication of the date of the latest available unaudited interim financial statements), inquiries of officers of the Company who have responsibility for financial and accounting matters, review of minutes of all meetings of the shareholders and the Board of Directors of the Company and other specified inquiries and procedures, nothing has come to their attention as a result of the foregoing inquiries and procedures that causes them to believe that:
(A) during the period from (and including) the date of the financial statements in the Registration Statement and the Prospectus to a specified date not more than five days prior to the date of Accounting Standards Nosuch letters, there has been any change in the capital stock, long-term debt or other securities of the Company (except as specifically contemplated in the Registration Statement and Prospectus) or any material decreases in net current assets, net assets, shareholder's equity, working capital or in any other item appearing in the Company's financial statements as to which the Underwriter may request advice, in each case as compared with amounts shown in the balance sheet as of the date of the financial statement in the Prospectus, except in each case for changes, increases or decreases that the Prospectus discloses have occurred or will occur;
(B) during the period from (and including) the date of the financial statements in the Registration Statement and the Prospectus to such specified date there was any material decrease in revenues or in the total or per share amounts of income or loss before extraordinary items or net income or loss, or any other material change in such other items appearing in the Company's financial statements as to which the Underwriter may request advice, in each case as compared with the fiscal period ended as of the date of the financial statement in the Prospectus, except in each case for increases, changes or decreases that the Prospectus discloses have occurred or will occur;
(C) the unaudited interim financial statements of the Company appearing in the Registration Statement and the Prospectus (if any) comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations and are fairly presented in conformity with generally accepted accounting principles and practices on a basis substantially consistent with the audited financial statements included in the Registration Statements or the Prospectus; and
(iv) they have compared specific dollar amounts, numbers of shares, percentages of revenues and earnings, statements and other financial information pertaining to the Company set forth in the Prospectus in each case to the extent that such amounts, numbers, percentages, statements and information may be derived from the general accounting records, including work sheets, of the Company and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter and found them to be in agreement. 72Such letters shall also set forth such other information as may be reasonably requested by counsel for the Underwriter. Any changes, increases or decreases in the items set forth in such letters which, in the judgment of the Underwriter, are materially adverse with respect to the financial position or results of operations of the Company shall be deemed to constitute a failure of the Company to comply with the conditions of the obligations to the Underwriter hereunder.
(ce) The Company You shall have furnished to you a certificatereceived an opinion from Xxxxxxxxxx Xxxxx & Xxxxxx, signed by two directors of the Company with specific knowledge of the financial matters of the CompanyP.C., reasonably satisfactory to you, dated the Closing Dateyour counsel, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:specified in Exhibit E attached hereto.
(f) (i) the representations and warranties of the Company contained in the this Agreement are shall be true and correct on and as of the Closing Date in all material respects with the same effect as if made on and as of the Closing Date Dates, taking into account for the Option Closing Date(s) the effect of the transactions contemplated hereby, and the Company has complied with shall have performed all the agreements of its obligations hereunder and satisfied all the conditions on its part to be performed or satisfied at or prior to the such Closing Date;
; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose the Prospectus and any amendments or under Section 8A supplements thereto shall contain all statements which are required to be stated therein in accordance with the Act and the Rules and Regulations, and shall in all material respects conform to the requirements thereof, and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading (in light of the Act circumstances under which they were made in the case of the Prospectus); (iii) there shall have been instituted orbeen, since the respective dates as of which information is given, no material adverse change, or to the Company’s 's knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference any development involving a prospective material adverse change, in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)business, there has been no material adverse effect on the properties, condition (financial or otherwise), prospectsresults of operations, earningscapital stock, business long-term or properties short-term debt or general affairs of the CompanyCompany from that set forth in the Registration Statement and the Prospectus, except changes which the Registration Statement and Prospectus indicate might occur after the Effective Date and the Company shall not have incurred any material liabilities or entered into any material agreement not in the ordinary course of business other than as referred to in the Registration Statement and Prospectus; (iv) except as set forth in the Prospectus, no action, suit or contemplated proceeding at law or in equity shall be pending or threatened against the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished Company which would be required to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined be set forth in the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose shall be pending or under Section 8A of threatened against the Act have been instituted orCompany before or by any commission, to board or administrative agency, wherein an unfavorable decision, ruling or finding would materially and adversely affect the Guarantor’s knowledgebusiness, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)property, there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business results of operations or properties general affairs of the Guarantor Company, and its subsidiaries(v) you shall have received, taken as at such Closing Date, a whole, except as set forth in or contemplated in certificate signed by each of the Disclosure Package chief executive officer and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any principal financial officer of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time orCompany, if earlier, the dates dated as of which information is given in the Registration Statement (exclusive of any amendment thereof)such Closing Date, the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed evidencing compliance with the offering or delivery provisions of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
this subsection (f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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).
(g) No action shall have been taken by the Commission or the NASD, the effect of which would make it improper, at any time prior to a Closing Date, for members of the NASD to execute transactions in the Shares and no proceedings for the taking of such action shall have been instituted or shall be pending, or, to the knowledge of the Underwriter or the Company, shall be contemplated by the Commission or the NASD. The Company and the Underwriter represent that at the date hereof each has no knowledge that any such action is in fact contemplated against it by the Commission or the NASD. The Company shall advise the Underwriter of any NASD affiliation of any of its officers, directors, or shareholders or their affiliates.
(h) Prior to the Effective Date, the Underwriter shall have received clearance from the NASD as to the amount of compensation allowable or payable to the Underwriter, as described in the Registration Statement.
(i) If any of the conditions herein provided for in this section shall not have been fulfilled in all material respects as of the date indicated, this Agreement and all obligations of the Underwriter under this Agreement may be canceled at, or at any time prior to, each Closing Date by the Underwriter notifying the Company of such cancellation in writing at or prior to the applicable Closing Date, . Any such cancellation shall be without liability of the Underwriter to the Company.
(j) The Underwriter shall have received such other documents and items as it or its counsel has reasonably requested and are satisfied with all other items relating directly and/or indirectly to the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably requestOffering.
Appears in 3 contracts
Samples: Underwriting Agreement (Jed Oil Inc), Underwriting Agreement (Jed Oil Inc), Underwriting Agreement (Jed Oil Inc)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase Securities pursuant and pay for the Units which it has agreed to the Terms Agreement purchase hereunder, are subject to the accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofherein, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder hereunder, and to the following further conditions:
(a) The Company and the Guarantor Registration Statement shall have requested become effective and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor you shall have requested and caused PricewaterhouseCoopersreceived notice thereof not later than 10:00 A.M., independent auditors for New York time, on the Guarantor, and such other independent auditors as may be specified in day following the Terms date of this Agreement, or at such later time or on such later date as to have furnished to you, at the Execution Time and at the Closing Date, letters (which you may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, agree in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct writing; on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) Dates no stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings for that or a similar purpose or under Section 8A of the Act shall have been instituted or shall be pending or, to your knowledge or to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties knowledge of the Company, except as set forth shall be contemplated by the Commission; any request on the part of the Commission for additional information shall have been complied with to the satisfaction of the Commission; and no stop order shall be in effect denying or contemplated suspending effectiveness of such qualification nor shall any stop order proceedings with respect thereto be instituted or pending or threatened. If required, the Prospectus shall have been filed with the Commission in the Disclosure Package manner and within the Final Prospectus (exclusive of any supplement thereto)time period required by Rule 424(b) under the Act.
(db) The Guarantor At the First Closing Date, you shall have furnished to you a certificatereceived the opinion, signed by two executive officers dated as of the Guarantor with specific knowledge First Closing Date, of Xxxx Xxxxx Xxxx & XxXxxx, counsel for the financial matters of the GuarantorCompany, reasonably in form and substance satisfactory to you, dated counsel for the Closing DateUnderwriter, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations Company and warranties its Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the Guarantor their respective jurisdictions of organization, with all requisite corporate power and authority to own their properties and conduct their business as described in the Agreement Registration Statement and Prospectus and are true duly qualified or licensed to do business as foreign corporations and correct on and as are in good standing in each other jurisdiction in which the ownership or leasing of their properties or conduct of their business requires such qualification except where the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part failure to qualify or be performed or satisfied at or prior to the Closing Datelicensed will not have a Material Adverse Effect;
(ii) the authorized capitalization of the Company as of _______, 1997 is as set forth in the Registration Statement; the Securities as set forth in the Registration Statement have been duly authorized and upon payment of consideration therefor, will be validly issued, fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; to such counsel's knowledge the outstanding shares of capital stock of the Company and its Subsidiaries have not been issued in violation of the preemptive rights of any shareholder and to such counsel's knowledge the shareholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase, nor are there any restrictions upon the voting or transfer of any of the capital stock except as provided in the Prospectus or as required by law. The Securities, the Purchase Option and the Warrant Agreement conform in all material respects to the respective descriptions thereof contained in the Prospectus; the shares of Common Stock, and the shares of Common Stock issuable upon exercise of Warrants, the Purchase Option, and the Warrant Agreement will have been duly authorized and, when issued and delivered in accordance with their respective terms, will be duly and validly issued, fully paid, non-assessable, free of preemptive rights to the best of their knowledge; to the best of their knowledge, all prior sales by the Company of the Company's securities, have been made in compliance with or under an exemption from registration under the Act and applicable state securities laws; a sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Warrants and Common Stock has been reserved for issuance upon exercise of the Warrants contained in the Purchase Option and to the best of such counsel's knowledge, neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any registration rights other than those which have been waived or satisfied for or relating to the registration of any shares of Common Stock;
(iii) this Agreement, the Purchase Option, and the Warrant Agreement have been duly and validly authorized, executed and delivered by the Company;
(iv) the certificates evidencing the Securities as described in the Registration Statement comply in all material respects with the descriptions set forth therein, and comply with the New Jersey General Corporation Law, as in effect on the date hereof; each Warrant will be exercisable for one share of the Common Stock of the Company, respectively, and at the prices provided for in the Warrant Agreement;
(v) except as otherwise disclosed in the Registration Statement, such counsel knows of no pending or threatened legal or governmental proceedings to which the Company or its Subsidiaries are a party which would materially adversely affect the business, property, financial condition or operations of the Company or its Subsidiaries; or which question the validity of the Securities, this Agreement, the Warrant Agreement or the Purchase Option, or of any action taken or to be taken by the Company pursuant to this Agreement, the Warrant Agreement or the Purchase Option; to such counsel's knowledge there are no governmental proceedings or regulations required to be described or referred to in the Registration Statement which are not so described or referred to;
(vi) the execution and delivery of this Agreement, the Purchase Option or the Warrant Agreement and the incurrence of the obligations herein and therein set forth and the consummation of the transactions herein or therein contemplated, will not result in a breach or violation of, or constitute a default under the certificate of incorporation or by-laws of the Company or its Subsidiaries, or to the best knowledge of counsel after due inquiry, in the performance or observance of any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to which the Company or its Subsidiaries is a party or by which they or any of their properties is bound or in violation of any order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign the result of which would have a Material Adverse Effect;
(vii) the Registration Statement has become effective under the Act, and to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued is in effect, and no proceedings for that purpose have been instituted or under Section 8A are pending before, or threatened by, the Commission; the Registration Statement and the Prospectus (except for the financial statements and other financial data contained therein, or omitted therefrom, as to which such counsel need express no opinion) as of the Effective Date comply as to form in all material respects with the applicable requirements of the Act have been instituted or, to and the Guarantor’s knowledge, threatenedRules and Regulations;
(iiiviii) since in the date course of preparation of the most recent financial Registration Statement and the Prospectus such counsel has participated in conferences with the President of the Company with respect to the Registration Statement and Prospectus and such discussions did not disclose to such counsel any information which gives such counsel reason to believe that the Registration Statement or any amendment thereto at the time it became effective contained any untrue statement of a material fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary to make the statements included therein not misleading or incorporated by reference that the Prospectus or any supplement thereto contains any untrue statement of a material fact or omits to state a material fact necessary in order to make statements therein, in light of the circumstances under which they were made, not misleading (except, in the Disclosure Package case of both the Registration Statement and any amendment thereto and the Final Prospectus (exclusive of and any supplement thereto, for the financial statements, notes thereto and other financial information (including without limitation, the pro forma financial information) and schedules contained therein, as to which such counsel need express no opinion), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and;
(ivix) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given all descriptions in the Registration Statement (exclusive and the Prospectus, and any amendment or supplement thereto, of contracts and other agreements to which the Company or its Subsidiaries is a party are accurate and fairly present in all material respects the information required to be shown, and such counsel is familiar with all contracts and other agreements referred to in the Registration Statement and the Prospectus and any such amendment or supplement or filed as exhibits to the Registration Statement, and such counsel does not know of any amendment thereof)contracts or agreements to which the Company or its Subsidiaries is a party of a character required to be summarized or described therein or to be filed as exhibits thereto which are not so summarized, the Disclosure Package described or filed;
(exclusive x) no authorization, approval, consent, or license of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, governmental or any development involving a prospective change, regulatory authority or agency is necessary in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed connection with the offering authorization, issuance, transfer, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive Company, in connection with the execution, delivery and performance of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued this Agreement by or guaranteed by either the Company or in connection with the Guarantor by taking of any “nationally recognized statistical rating organization” (as defined for purposes action contemplated herein, or the issuance of Rule 436(g) the Purchase Option or the Securities underlying the Purchase Option, other than registrations or qualifications of the Securities under applicable state or foreign securities or Blue Sky laws and registration under the Act; and
(xi) the Units, shares of Common Stock and the Warrants have been duly authorized for quotation on the Boston Stock Exchange and the NASD Electronic Bulletin Board. Such opinion shall also cover such matters incident to the transactions contemplated hereby as the Underwriter or any notice given counsel for the Underwriter shall reasonably request. In rendering such opinion, such counsel may rely upon certificates of any intended officer of the Company or potential decrease in any such rating public officials as to matters of fact; and may rely as to all matters of law other than the law of the United States or of a possible change the State of New York or New Jersey upon opinions of counsel satisfactory to you, in any such rating which case the opinion shall state that does they have no reason to believe that you and they are not indicate the direction of the possible changeentitled to so rely.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 2 contracts
Samples: Underwriting Agreement (Flemington Pharmaceutical Corp), Underwriting Agreement (Flemington Pharmaceutical Corp)
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters to purchase the Securities pursuant to the Terms under this Agreement are is subject to the accuracy of the representations and warranties on the part satisfaction of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) All the representations and warranties of the Issuers contained in this Agreement shall be true and correct as of the Time of Sale and on the Closing Date with the same force and effect as if made on and as of the Time of Sale and on and as of the Closing Date. The Company and the Guarantor Issuers shall have requested performed or complied with all of their agreements herein contained and caused required to be performed or complied with by them at or prior to the delivery of written opinions, substantially in the forms contemplated by the Terms AgreementClosing Date.
(bi) The Guarantor No stop order suspending the effectiveness of the Registration Statement shall have requested been issued and caused PricewaterhouseCoopersno proceedings for that purpose or pursuant to Section 8A of the Act against the Company in connection with the offering of the Securities shall have been commenced or shall be pending before or threatened by the Commission, independent auditors (ii) every request for additional information on the part of the Commission shall have been complied with in all material respects and (iii) no stop order suspending the sale of the Securities in any jurisdiction referred to in Section 6(h) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened which would, in your reasonable judgment, make it impracticable or inadvisable to proceed with the public offering or delivery of the Securities or to enforce contracts for the Guarantor, sale of the Securities.
(c) Subsequent to the execution and such other independent auditors as may be specified in the Terms Agreement, delivery of this Agreement and prior to have furnished to you, at the Execution Time and at the Closing Date, there shall not have been 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 any Issuer’s debt by any “nationally recognized statistical rating organization,” as such term is defined in Section (3)(a)(62) of the Exchange Act.
(i) Since the date of the latest balance sheet included in the Registration Statement, the Time of Sale Information and the Prospectus there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, affairs or business prospects, whether or not arising in the ordinary course of business, of the Company and its subsidiaries taken as a whole, (ii) since the date of the latest balance sheet included in the Registration Statement, the Time of Sale Information and the Prospectus there shall not have been any material change in the capital stock or in the long-term debt of the Company or any of its subsidiaries from that set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus and (iii) the Company and its subsidiaries shall have no liability or obligation, direct or contingent, which is material to the Company and its subsidiaries, taken as a whole, other than those set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(e) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, signed by (i) Xxxxxx X. Xxxxxx or Xxxxx Xxxx and (ii) Xxxx X. Xxxxx or Xxxxxxx Xxxxxxx Xxxxxxx in their capacities as (A) the Chairman of the Board or Chief Executive Officer and President and (B) Chief Financial Officer or Treasurer of the Company, respectively, confirming the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 8.
(f) The Underwriters shall have received on the Closing Date letters (which may refer satisfactory to letters previously delivered to one or more of youyou and counsel for the Underwriters), dated respectively the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, in the form previously agreed between such counsel and counsel for the Underwriters.
(g) The Underwriters shall have received on the Closing Date letters, dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, in form and substance satisfactory to the Underwriters.
(h) The Underwriters shall have received letters on and as of the Execution Time date of this Agreement and as of the Closing Date, in form and substance satisfactory to you, confirming that they are from each of PricewaterhouseCoopers LLP and Ernst & Young LLP, each an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance firm, with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished respect to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined statements and certain financial information contained in the Registration Statement, the Disclosure Package, Time of Sale Information (including the Final Prospectus and any supplements or amendments thereto, Preliminary Prospectus) and the Terms Agreement and that:Prospectus.
(i) the representations and warranties of Neither the Company in the Agreement are true and correct on and as nor any of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act subsidiaries shall have been instituted or, to the Company’s knowledge, threatened; and
(iii) sustained since the date of the most recent latest audited financial statements included or incorporated by reference in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto)loss or interference with its business from fire, there has been no material adverse effect on the condition (financial explosion, flood or otherwise)other calamity, prospectswhether or not covered by insurance, earningsor from any labor dispute or court or governmental action, business order or properties of the Companydecree, except otherwise than as set forth in or contemplated in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the such date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock, net revenues, per share or total amounts of income before extraordinary items or of net income or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (general affairs, management, financial position, stockholders’ equity or otherwise), earnings, business or properties results of operations of the Guarantor Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except otherwise than as set forth in or contemplated in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto) Prospectus, the effect of which which, in any such case described in clause (i) or (ii), is, in your sole judgmentthe judgment of the Representatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the public offering or the delivery of the Securities as being delivered on the Closing Date on the terms and in the manner contemplated by in the Registration Statement (exclusive Time of any amendment thereof) Sale Information and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(fj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor The Issuers shall have furnished to you such other documents and certificates as to the Underwriters accuracy and completeness of any statement in the Registration Statement, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus as you reasonably may request.
(k) You shall have been furnished with such further information, additional documents and certificates and documents as you or counsel for the Underwriters may reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to you and your counsel. Any certificate or document signed by any officer of the Issuers and delivered to you or to your counsel shall be deemed a representation and warranty by the Issuers to the Underwriters as to the statements made therein.
Appears in 2 contracts
Samples: Underwriting Agreement (Horton D R Inc /De/), Underwriting Agreement (Horton D R Inc /De/)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase and pay for the Securities pursuant which it has agreed to the Terms Agreement purchase hereunder, are subject to the accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofherein, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder hereunder, and to the following further conditions:
(a) The Company and the Guarantor Registration Statement shall have requested become effective and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor you shall have requested and caused PricewaterhouseCoopersreceived notice thereof not later than 10:00 A.M., independent auditors for New York time, on the Guarantor, and such other independent auditors as may be specified in day following the Terms date of this Agreement, or at such later time or on such later date as to have furnished to you, at the Execution Time and at the Closing Date, letters (which you may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, agree in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct writing; on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) Dates no stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings for that or a similar purpose or under Section 8A of the Act shall have been instituted or shall be pending or, to your knowledge or to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties knowledge of the Company, except as set forth shall be contemplated by the Commission; any request on the part of the Commission for additional information shall have been complied with to the satisfaction of the Commission; and no stop order shall be in effect denying or contemplated suspending effectiveness of such qualification nor shall any stop order proceedings with respect thereto be instituted or pending or threatened. If required, the Prospectus shall have been filed with the Commission in the Disclosure Package manner and within the Final Prospectus (exclusive of any supplement thereto)time period required by Rule 424(b) under the Act.
(db) The Guarantor At the First Closing Date, you shall have furnished to you a certificatereceived the opinion, signed by two executive officers dated as of the Guarantor with specific knowledge First Closing Date, of Johnson, Blakely, Pope, Bokor, Ruppxx & Xurnx, X.A., counsel for the financial matters of the GuarantorCompany, reasonably in form and substance satisfactory to you, dated counsel for the Closing DateUnderwriter, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations Company and warranties its Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the Guarantor their respective jurisdictions of organization, with all requisite corporate power and authority to own their properties and conduct their business as described in the Agreement Registration Statement and Prospectus and are true duly qualified or licensed to do business as foreign corporations and correct on and as are in good standing in each other jurisdiction in which the ownership or leasing of their properties or conduct of their business requires such qualification except where the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part failure to qualify or be performed or satisfied at or prior to the Closing Datelicensed will not have a Material Adverse Effect;
(ii) no stop order suspending the effectiveness authorized capitalization of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A Company as of the Act have been instituted or____________, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except 1997 is as set forth in or contemplated the Registration Statement; the Securities as set forth in the Disclosure Package Registration Statement have been duly authorized and upon payment of consideration therefor, will be validly issued, fully paid and non-assessable and conform in all material respects to the Final Prospectus (exclusive description thereof contained in the Prospectus; to such counsel's knowledge the outstanding shares of capital stock of the Company and its Subsidiaries have not been issued in violation of the preemptive rights of any supplement thereto); and
(iv) since shareholder and to such counsel's knowledge the Execution Timeshareholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase, nor are there has not been any decrease in restrictions upon the rating voting or transfer of any of the debt securities capital stock except as provided in the Prospectus or as required by law. The Securities, the Purchase Option and the Warrant Agreement conform in all material respects to the respective descriptions thereof contained in the Prospectus; and the shares of Common Stock issuable upon exercise of Warrants, the Purchase Option, and the Warrant Agreement will have been duly authorized and, when issued by or guaranteed and delivered in accordance with their respective terms, will be duly and validly issued, fully paid, non-assessable, free of preemptive rights to the best of their knowledge; to the best of their knowledge, all prior sales by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) the Company's securities, have been made in compliance with or under an exemption from registration under the Act) or any notice given Act and applicable state securities laws; a sufficient number of any intended or potential decrease in any such rating or shares of a possible change in any such rating that does not indicate the direction Common Stock has been reserved for issuance upon exercise of the possible change.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) Warrants and the Final Prospectus (exclusive of any supplement thereto), there shall not have Common Stock has been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined reserved for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.issuance upon exercise
Appears in 2 contracts
Samples: Underwriting Agreement (Casco International Inc), Underwriting Agreement (Casco International Inc)
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters to purchase Securities pursuant to and pay for the Terms Agreement are Bonds shall be subject to the accuracy of of, and compliance with, the representations and warranties on the part of each of the Company Issuer and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofCompany contained herein, to the performance by each of the Issuer and the Company of their obligations to be performed hereunder at and prior to the Guarantor of all of its respective covenants and other obligations hereunder Closing Date, and to the following further conditions:
(a) The Company and the Guarantor shall have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time On and as of the Closing Date:
(i) The Indenture, the Loan Agreement, the Note, the Tax Agreement, the Financing Agreements, the Continuing Disclosure Certificate and this Bond Purchase Contract shall be in full force and effect, this Bond Purchase Contract shall not have been amended, modified or supplemented (except as may have been agreed to in writing by the Underwriters), and the Indenture, the Tax Agreement, the Financing Agreements, the Continuing Disclosure Certificate, the Loan Agreement and the Note shall have been duly authorized, executed and delivered in the respective forms heretofore approved by the Underwriters, except as otherwise approved by the Underwriters, provided that the acceptance of delivery of the Bonds by the Underwriters on the Closing Date shall be deemed to constitute such approval.
(ii) The Bonds shall have been duly authorized, executed and authenticated in accordance with the provisions of this Bond Purchase Contract, the Indenture, the Loan Agreement and the resolution of the Issuer described in clause (iv) below, and shall have been delivered through the facilities of DTC or its agent.
(iii) Each of the representations, warranties and covenants of the Issuer and the Company contained herein and in the Indenture, the Financing Agreements, the Loan Agreement and the Tax Agreement to which each is a party shall be true, complete and correct in all material respects as if then made, provided, however, that if any such documents contain references to the Official Statement, such representations, warranties and covenants, shall be subject to the redacted pricing information relating to the Shell Gas Agreement, as described in Section (3)(i) hereof.
(iv) The Issuer shall have duly adopted, and there shall be in full force and effect, such resolutions as shall be necessary to consummate the transactions contemplated by this Bond Purchase Contract.
(v) No order, decree or injunction of any court of competent jurisdiction shall have been issued, or proceedings therefor shall have been commenced, nor shall any order, ruling, regulation or official statement by any governmental official, body or board have been issued, nor shall any legislation have been enacted, with the purpose or effect of prohibiting or limiting the issuance, offering or sale of the Bonds, as contemplated herein or in the Official Statement, or the performance of this Bond Purchase Contract, the Indenture, the Loan Agreement, the Financing Agreements, the Note, the Tax Agreement or the Continuing Disclosure Certificate in accordance with their respective terms.
(b) On the Closing Date, the Underwriters shall receive executed or counterpart copies of the following documents, certificates, opinions and letters, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning Underwriters and their counsel:
(i) Executed copies of the Act Indenture, the Tax Agreement, the Loan Agreement, the Note, the Financing Agreements and the Exchange Act Continuing Disclosure Certificate; and covering a certified copy of the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement resolution pursuant to which the issuance of Accounting Standards No. 72the Bonds was authorized and all proceedings of the Issuer relating thereto.
(cii) The Company shall have furnished Opinions, dated the Closing Date, of: (A) XxXxxxxXxxxx LLP, Bond Counsel, in substantially the form attached to you a certificatethe Official Statement as Appendix F thereto and in substantially the form attached hereto as Exhibit A (with such changes or variations between the two as permitted by the Issuer, the Trustee and the Underwriters), including such changes resulting from the redaction of the Shell Gas Agreement pricing information from the Official Statement; (B) McGuireWoods LLP, special counsel to the Company, in substantially the form attached hereto as Exhibit B (with such changes as agreed to by the Issuer, the Trustee and the Underwriters), (C) Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Underwriters, in substantially the form attached hereto as Exhibit C and (D) Xxxxxx & Xxxxxx LLP, counsel to the Issuer, in substantially the form attached hereto as Exhibit D.
(iii) A certificate of the Issuer, signed by two directors an authorized officer of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to youIssuer, dated the Closing Date, to the effect that each of the signers representations of such certificate have carefully examined the Registration StatementIssuer set forth herein is true, accurate and complete in all material respects at and as of the Disclosure Package, Closing Date and that each of the Final Prospectus and any supplements obligations of the Issuer hereunder to be performed at or amendments thereto, and prior to the Terms Agreement and that:Closing Date has been performed.
(iiv) A certificate, dated the Closing Date, signed by an authorized officer of the Company satisfactory to the Underwriters, to the effect that: (1) the representations and warranties of the Company set forth herein are true, accurate and complete in the Agreement are true and correct on all material respects at and as of the Closing Date with Date, (2) each of the same effect as if made on the Closing Date and obligations of the Company has complied with all the agreements and satisfied all the conditions on its part under this Bond Purchase Contract to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act Date have been instituted orperformed, to the Company’s knowledge, threatened; and
and (iii3) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement Official Statement, as it may have been amended or supplemented (exclusive including amendments or supplements resulting from the filing of any amendment thereof), the Disclosure Package (exclusive of any amendment thereofdocuments incorporated by reference) and up to the Final Prospectus (exclusive of any supplement thereto)Closing Date, there shall not have has been any changeno material adverse change in the business, properties or any development involving a prospective change, in or affecting the financial condition (financial or otherwise), earnings, business or properties of the Guarantor Company and its subsidiaries, subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth reflected in or contemplated by the Official Statement, as it may have been so amended or supplemented.
(v) An executed copy of IRS Form 8038 to be filed with the Internal Revenue Service.
(vi) A letter of Fitch Ratings evidencing that the rating issued and in effect on the Bonds is “BBB-.”
(vii) An opinion of counsel to the Trustee and the Depository Bank addressed to the Issuer and the Underwriters, dated the date of Closing, to the effect that: (i) the Trustee and Depository Bank is a national banking association with trust powers, duly organized and validly existing and in good standing under the laws of the United States of America, having the legal authority to exercise trust powers in the Disclosure Package State; (ii) the Trustee and Depository Bank has full legal power and corporate authority to accept the duties and obligations imposed on it by the Depository Agreement and the Final Prospectus Indenture and to authenticate the Bonds and the full legal power and authority to own its properties and to carry on its business; (exclusive iii) the Bonds have been duly authenticated by the Trustee; (iv) no consent, approval, authorization or order of any supplement thereto) court, regulatory authority or governmental body is required for the effect of which isvalid authorization, in your sole judgment, so material execution and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities Indenture and the authentication of the Bonds or the consummation by the Trustee of the transactions contemplated in the Indenture except such as have been obtained and except such as may be required under the state securities or Blue Sky laws in connection with the purchase and distribution of the Bonds by the Underwriters; and (v) the acceptance of its duties under the Depository Agreement and the Indenture and the authentication of the Bonds by the Trustee and performance by the Trustee and Depository Bank of its obligations thereunder, will not conflict with or result in a breach of any of the terms, conditions or provisions of its Articles of Organization or any other agreement or instrument to which the Trustee and Depository Bank is a party or by which it is bound or any other existing law, regulation, court order or consent decree to which the Trustee and Depository Bank is subject or constitute a default thereunder.
(viii) A certificate of the Trustee and the Depository Bank, dated the date of the Closing, to the effect that: (i) it is a national banking association existing under the laws of the United States of America, and has full power and is qualified to accept and comply with the terms of the Indenture and the Depository Agreement, as applicable, and to perform its obligations stated therein; (ii) the Trustee and the Depository Bank have each accepted the duties and obligations imposed on it by the Indenture and the Depository Agreement; (iii) no consent, approval, authorization or other action by any governmental or regulatory authority having jurisdiction over the Trustee and the Depository Bank that has not been obtained is or will be required for the consummation by the Trustee or the Depository Bank of the transactions contemplated by the Registration Statement Indenture and the Depository Agreement, respectively, to be undertaken by the Trustee or the Depository Bank; (exclusive iv) compliance with the terms of the Indenture and the Depository Agreement will not conflict with, or result in a violation or breach of, or constitute a default under, any loan agreement, indenture, bond, note, resolution or any other agreement or instrument to which either the Trustee or the Depository Bank is a party or by which it is bound, or, to the best knowledge of the Trustee, after reasonable investigation, any law, rule, regulation, order or decree of any amendment thereofcourt or governmental agency or body having jurisdiction over the Trustee or the Depository Bank or any of their activities or properties (except that no representation, warranty or agreement is made by the Trustee and the Depository Bank with respect to any Federal or state securities or Blue Sky laws or regulations); and (v) to the best knowledge of the Trustee and the Depository Bank, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court or governmental agency, public board or body served on or threatened against or affecting the existence of the Trustee or the Depository Bank, or contesting the powers of the Trustee, Depository Bank or its authority to enter into and perform their respective obligations under the Indenture, the Depository Agreement or the Bonds, wherein an unfavorable decision, ruling or finding would adversely affect the validity of the Bonds, the Depository Agreement or the Indenture.
(ix) A certificate of Xxxxxxx & Xxxxx, L.L.C. (the “Independent Engineer”), dated the Closing Date, in substantially the effect that: (i) the Independent Engineer consents to the inclusion of its report, dated December 1, 2010, (the “December Report”) further amended by an Addendum dated January 31, 2011 (the Addendum, together with the December Engineer’s Report, the “Report”), and of all references to the Independent Engineer in the Preliminary Official Statement relating to the Bonds, dated March 23, 2011 (the “Preliminary Official Statement”) and the Disclosure Package final Official Statement relating to the Bonds, dated March 24, 2011 (the “Official Statement”); (ii) the Report was prepared in accordance with the degree of skill and care ordinarily exercised by engineers practicing under similar circumstances; and (iii) the Final Prospectus (exclusive Independent Engineer has not undertaken any further analysis or due diligence investigation with respect to the matters addressed in the Report since the date thereof but nothing has come to its attention that would make any of the information therein materially incorrect or materially change any supplement thereto)of the assumptions made by the Independent Engineer therein.
(fx) Subsequent A pro forma title policy from Republic Title of Texas, Inc. in the aggregate principal amount of the Bonds.
(xi) Evidence that the Company has obtained all insurance required to be obtained by the Execution Time, there Company Documents.
(xii) Such additional certifications and opinions as the Underwriters or Bond Counsel may reasonably require. In case any of the conditions specified above in this Section 7 shall not have been fulfilled, or if the obligations of the Underwriters are terminated by the Underwriters for any decrease in reason permitted by this Bond Purchase Contract, this Bond Purchase Contract may be terminated by the rating Underwriters upon written notice thereof to the Issuer and the Company. Any such termination shall be without liability of any party to any other party; except that the obligations to pay fees and expenses as provided in Section 2 hereof shall continue in full force and effect to the extent set forth therein. The Underwriters may, in their discretion, waive any one or more of the debt securities issued conditions imposed by or guaranteed by either this Bond Purchase Contract and proceed with the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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 purchase of the possible change.
(g) Prior to Bonds on the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters to purchase the Securities pursuant to the Terms under this Agreement are is subject to the accuracy of the representations and warranties on the part satisfaction of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) All the representations and warranties of the Issuers contained in this Agreement shall be true and correct as of the Time of Sale and on the Closing Date with the same force and effect as if made on and as of the Time of Sale and on and as of the Closing Date. The Company and the Guarantor Issuers shall have requested performed or complied with all of their agreements herein contained and caused required to be performed or complied with by them at or prior to the delivery of written opinions, substantially in the forms contemplated by the Terms AgreementClosing Date.
(bi) The Guarantor No stop order suspending the effectiveness of the Registration Statement shall have requested been issued and caused PricewaterhouseCoopersno proceedings for that purpose or pursuant to Section 8A of the Act against the Company in connection with the offering of the Securities shall have been commenced or shall be pending before or threatened by the Commission, independent auditors (ii) every request for additional information on the part of the Commission shall have been complied with in all material respects and (iii) no stop order suspending the sale of the Securities in any jurisdiction referred to in Section 6(h) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened which would, in your reasonable judgment, make it impracticable or inadvisable to proceed with the public offering or delivery of the Securities or to enforce contracts for the Guarantor, sale of the Securities.
(c) Subsequent to the execution and such other independent auditors as may be specified in the Terms Agreement, delivery of this Agreement and prior to have furnished to you, at the Execution Time and at the Closing Date, there shall not have been 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 any Issuer’s debt by any “nationally recognized statistical rating organization,” as such term is defined in Section (3)(a)(62) of the Exchange Act.
(i) Since the date of the latest balance sheet included in the Registration Statement, the Time of Sale Information and the Prospectus there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, affairs or business prospects, whether or not arising in the ordinary course of business, of the Company and its subsidiaries taken as a whole, (ii) since the date of the latest balance sheet included in the Registration Statement, the Time of Sale Information and the Prospectus there shall not have been any material change in the capital stock or in the long-term debt of the Company or any of its subsidiaries from that set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus and (iii) the Company and its subsidiaries shall have no liability or obligation, direct or contingent, which is material to the Company and its subsidiaries, taken as a whole, other than those set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(e) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, signed by (i) Xxxxx X. Xxxx or Xxxx X. Xxxxxxxxxx and (ii) Xxxx X. Xxxxx or Xxxxxx X. Xxxxxx in their capacities as (A) the Chairman of the Board or President and Chief Executive Officer and (B) Chief Financial Officer or Treasurer of the Company, respectively, confirming the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 8.
(f) The Underwriters shall have received on the Closing Date letters (which may refer satisfactory to letters previously delivered to one or more of youyou and counsel for the Underwriters), dated respectively the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, in the form previously agreed between such counsel and counsel for the Underwriters.
(g) The Underwriters shall have received on the Closing Date letters, dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, in form and substance satisfactory to the Underwriters.
(h) The Underwriters shall have received letters on and as of the Execution Time date of this Agreement and as of the Closing Date, in form and substance satisfactory to you, confirming that they are from Ernst & Young LLP, an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance firm, with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished respect to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined statements and certain financial information contained in the Registration Statement, the Disclosure Package, Time of Sale Information (including the Final Prospectus and any supplements or amendments thereto, Preliminary Prospectus) and the Terms Agreement and that:Prospectus.
(i) the representations and warranties of Neither the Company in the Agreement are true and correct on and as nor any of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act subsidiaries shall have been instituted or, to the Company’s knowledge, threatened; and
(iii) sustained since the date of the most recent latest audited financial statements included or incorporated by reference in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto)loss or interference with its business from fire, there has been no material adverse effect on the condition (financial explosion, flood or otherwise)other calamity, prospectswhether or not covered by insurance, earningsor from any labor dispute or court or governmental action, business order or properties of the Companydecree, except otherwise than as set forth in or contemplated in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the such date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock, net revenues, per share or total amounts of income before extraordinary items or of net income or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (general affairs, management, financial position, stockholders’ equity or otherwise), earnings, business or properties results of operations of the Guarantor Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except otherwise than as set forth in or contemplated in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto) Prospectus, the effect of which which, in any such case described in clause (i) or (ii), is, in your sole judgmentthe judgment of the Representatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the public offering or the delivery of the Securities as being delivered on the Closing Date on the terms and in the manner contemplated by in the Registration Statement (exclusive Time of any amendment thereof) Sale Information and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(fj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor The Issuers shall have furnished to you such other documents and certificates as to the Underwriters accuracy and completeness of any statement in the Registration Statement, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus as you reasonably may request.
(k) You shall have been furnished with such further information, additional documents and certificates and documents as you or counsel for the Underwriters may reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to you and your counsel. Any certificate or document signed by any officer of the Issuers and delivered to you or to your counsel shall be deemed a representation and warranty by the Issuers to the Underwriters as to the statements made therein.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters Underwriter to purchase Securities and pay for the Notes pursuant to the Terms this Agreement are subject to the accuracy of the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) The On the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act and no proceedings therefor shall have been instituted or threatened by the Commission.
(b) On the Closing Date, you shall have received an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, as counsel for the Company and the Guarantor, dated the Closing Date and in form and substance reasonably satisfactory to you and counsel for the Underwriter, substantially to the effect set forth in Exhibit A hereto.
(c) On the Closing Date, you shall have received an opinion of the General Counsel of the Company and the Guarantor, dated the Closing Date and in form and substance reasonably satisfactory to you and counsel for the Underwriter, substantially to the effect set forth in Exhibit B hereto.
(d) On the Closing Date, you shall have received an opinion of Shearman & Sterling, as counsel for the Underwriter, dated the Closing Date, with respect to the issuance and sale of the Notes and the related Guarantees, the Registration Statement, the Prospectus and other related matters as the Underwriter may reasonably require.
(e) On the Closing Date, (i) (A) the Registration Statement, as it may then be amended or supplemented, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (B) the Prospectus, as it may then be amended or supplemented, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made, (C) the Company and the Guarantor shall have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part their respective parts to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(iD) the other representations and warranties of the Company and the Guarantor set forth in the Agreement are true and correct on Section 1(a) shall be accurate in all material respects as though expressly made at and as of the Closing Date (except to the extent that such representations and warranties refer to an earlier or later date, in which case they shall be accurate in all material respects as of such dates) and (ii) subsequent to the execution and delivery of this Agreement, there shall not have been any material adverse change in the condition (financial or other), earnings, business or prospects of the Guarantor and its consolidated subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, that in your judgment, is so material and adverse that it makes it impracticable or inadvisable to proceed with the same effect as if made on public offering or sale of and payment for the Notes. At the Closing Date Date, you shall have received a certificate of the President or a Senior or Executive Vice President, and other senior officers of the Company and the Guarantor has complied approved by you, dated as of the Closing Date, to such effect.
(f) On each of the date hereof and the Closing Date, you shall have received a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to you and counsel to the Underwriter, from Ernst & Young LLP, the Company's independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with all respect to the agreements financial statements and satisfied all certain other financial or statistical data and certain financial information contained in or incorporated by reference into the conditions on its part Registration Statement and the Prospectus.
(g) Subsequent to be performed or satisfied at or the execution and delivery of this Agreement and prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act , there shall not have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or downgrading nor any notice given to the Company or the Guarantor or any public notice given, in either case by a rating agency described below, of any intended or potential decrease in any such rating downgrading or of a possible change in any such rating that does not indicate the direction of the possible change.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of accorded any of the debt securities issued by or guaranteed by either the Company Company's or the Guarantor Guarantor's securities, including the Notes and the related Guarantees, by any “"nationally recognized statistical rating organization” (", as such term is defined for purposes of Rule 436(g436(g)(2) under the Securities 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.
(gh) Prior to the Closing Date, the The Company and the Guarantor shall have furnished to you and to counsel for the Underwriters Underwriter, in form and substance satisfactory to you and to them, such further informationother documents, certificates and documents opinions as the Underwriters such counsel may reasonably requestrequest in order to pass upon the matters referred to in Section 4(d) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company or the Guarantor theretofore to be performed, or the compliance with any of the conditions herein contained. If any of the conditions specified in this Section 4 shall not have been fulfilled when and as required by this Agreement to be fulfilled, this Agreement may be terminated by you on notice to the Company and the Guarantor at any time prior to the Closing Date and such termination shall be without liability of any party to any other party, except as provided in Section 6. Notwithstanding any such termination, the provisions of Section 7 shall remain in effect.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase Securities pursuant to and pay for the Terms Agreement are subject Certificates shall be subject, in the Under writer's sole discretion, to the accuracy of the representations and warranties on the part of each of the Company Depositor and the Guarantor Borrower contained herein containedas of the date hereof and as of the Closing Date, to the accuracy of the statements of the Company’s directors Depositor and the Guarantor’s officers Borrower made in any certificate furnished certificates delivered pursuant to the provisions hereof, to the performance by each of the Company Depositor and the Guarantor Borrower of all of its respective covenants and other their obligations hereunder and to the following further additional conditions:
(a) The Company and If the Guarantor shall have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, Registration Statement or any amendment thereto filed prior to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of you), dated respectively Date has not been declared effective as of the Execution Time and as time of execution hereof, the Closing Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Registration Statement of Accounting Standards No. 72.
(c) The Company or such amendment shall have furnished to you a certificatebeen declared effective not later than 11 A.M., signed by two directors of New York City time, on the Company with specific knowledge of date on which the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, amendment to the effect that registration statement originally filed with respect to the signers of such certificate have carefully examined Certificates or to the Registration Statement, as the Disclosure Packagecase may be, containing information regard ing the initial public offering price of the Certificates has been filed with the Commission, or such later time and date as shall have been consented to by the Underwriter; if required, the Final Prospectus and any supplements amendment or amendments thereto, and supplement thereto shall have been filed with the Terms Agreement and that:
(i) the representations and warranties of the Company Commis sion in the Agreement are true manner and correct on and as of within the Closing Date with time period required by Rule 424(b) under the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) Act; no stop order suspending the effectiveness of the Registration Statement has or any post-effective amendment thereto shall have been issued issued, and no proceedings for that purpose or under Section 8A of the Act shall have been instituted or threatened or, to the Company’s knowledgeknowledge of the Depositor or the Underwriter, threatenedshall be contemplated by the Commission; andand the Depositor shall have complied with any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise).
(b) The Underwriter shall have received an opinion dated the Closing Date of Xxxxxx Xxxxxxxx, Colombian counsel to the Borrower, to the effect that:
(i) The Borrower is duly organized and existing in good standing under the laws of the Republic of Colombia and has full power, authority and legal right to incur the indebtedness and obligations provided for in the Credit Agreement, the Promissory Note, this Agreement, the Letter Agree ment and the Reimbursement Promissory Note, and has taken all legal and other action necessary to autho rize it to execute and deliver this Agreement, the Promissory Note, the Credit Agreement, the Letter Agreement and the Reimbursement Promissory Note and perform and observe the terms and conditions of this Agreement, the Promissory Note, the Credit Agreement, the Letter Agreement and the Reimbursement Promissory Note.
(ii) All authorizations, registrations and approvals (including any foreign exchange ap proval with respect to the availability and transfer of Dollars necessary to make all required payments under the Promissory Note, the Credit Agreement, the Letter Agreement and the Reimbursement Promissory Note) of, or filings or registrations with the Republic of Colombia, or of any governmental agency thereof or therein, together with any third-party consents, which are necessary or advisable for the execution, delivery and performance of this Agreement, the Promissory Note, the Credit Agreement, the Letter Agreement and the Reimbursement Promissory Note or for the validity, binding effect and enforceability hereof or thereof have been obtained and are binding and enforceable and in full force and effect.
(iii) since the date No constitutional provision, law, ordinance, decree or regulation of the most recent financial statements included Government of Colombia, or incorporated any agency, department or instrumental ity thereof, no provision of any charter, by-law or similar instrument of the Borrower and no provision of any agreement or other instrument binding on the Borrower or to which it or its properties or revenues may be subject is or will be contravened by reference its execution and delivery of this Agreement, the Promissory Note, the Credit Agreement, the Letter Agree ment or the Reimbursement Promissory Note or its performance and observance of terms and conditions of this Agreement, the Promissory Note, the Credit Agreement, the Letter Agreement or the Reimbursement Promissory Note.
(iv) There is no pending or, to the best of the knowledge of such counsel, threatened action or proceeding affecting the Borrower before any court, governmental agency, international organiza tion or arbitrator, which (i) questions or could affect the legality, validity, binding effect or enforceability of this Agreement, the Promissory Note, the Credit Agreement, the Letter Agreement or the Reimbursement Promissory Note, (ii) might re strain or enjoin or have the effect of restraining or enjoining its performance or observance of the terms and the conditions of this Agreement, the Promissory Note, the Credit Agreement, the Letter Agreement or the Reimbursement Promissory Note or (iii) may individually or in the Disclosure Package aggregate material ly and adversely affect the financial condition or operations of the Borrower.
(v) The submission to jurisdiction and waiver of sovereign immunity by the Borrower set forth in Sections 14 and 15 of this Agreement, respectively, are both effective and irrevocably binding on the Borrower.
(vi) No consent, license, approval or authorization of, or registration, recording or filing with, the Government of Colombia or any court, agency, department or other administrative authority or instrumentality of the Government of Colombia or any local or other governmental authority within Colombia is required for the execution, delivery or performance of this Agreement, the Promissory Note, the Credit Agreement, the Letter Agreement or the Reimbursement Promissory Note by the Borrower or for the validity, enforceability, priority or admissibility hereof and thereof.
(vii) The waiver of immunity by the Borrower, the appointment of the Process Agent for service of process, the consent by the Borrower to the jurisdiction of the courts specified and the Final Prospectus provision that the law of the State of New York shall govern this Agreement, the Promissory Note, the Credit Agreement, the Letter Agreement and the Reimbursement Promissory Note, all as provided in this Agreement, the Credit Agreement and the Letter Agreement, are irrevocably binding on the Borrower and are valid under the laws of the Republic of Colombia.
(exclusive viii) This Agreement, the Credit Agreement and the Letter Agreement are, and the Promissory Note and the Reimbursement Promissory Note, when delivered by the Borrower under the Credit Agreement and the Letter Agreement, respectively, will be, in proper legal form under the laws of the Republic of Colombia for the most expeditious enforcement there of against the Borrower in the courts of the Republic of Colombia and any judgment obtained in the courts of New York will be recognized and enforced.
(ix) The Depositor and the Underwriter are not prevented from entering into this Agreement by reason of any supplement theretoof the prohibitions and incompatibilities mentioned in Law 80 of 1993 of the Republic of Colombia. In rendering the opinions set forth above, such counsel may assume and state that he has not independently verified (i) the authenticity of all documents submitted to him as originals and the conformity to the origi nals of all documents submitted to him as copies, (ii) that the execution and delivery of the Credit Agreement and the Letter Agreement have been duly authorized by each of the parties thereto (other than the Borrower) and that each of the parties thereto (other than the Borrower) has full power, authority and legal right to enter into each such agreement and to perform its obligations thereunder, and (iii) that the Credit Agreement and the Letter Agreement have been duly executed and delivered by each of the parties thereto (other than the Borrower). Such counsel may also assume that the Credit Agreement, the Promissory Note, the Letter Agreement and the Reimbursement Promissory Note are legal, valid, binding and enforceable under New York law. In rendering such opinions, such counsel may limit his opinions to matters governed by the laws of the Republic of Colombia.
(c) The Underwriter shall have received an opinion, dated the Closing Date, of Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx, special New York counsel to the Borrow er, to the effect that:
(i) The Credit Agreement, the Promissory Note, the Letter Agreement and the Reimbursement Promissory Note are the valid and binding obliga tions of the Borrower, enforceable against the Borrower in accordance with their respective terms, the Promissory Note is entitled to the benefits of the Credit Agreement and the Reimbursement Promisso ry Note is entitled to the benefits of the Letter Agreement.
(ii) The execution and delivery of the Credit Agreement, this Agreement, the Promissory Note, the Letter Agreement and the Reimbursement Promissory Note by the Borrower and the performance by the Borrower of its obligations therein and herein contemplated do not require the consent, approval, authorization, registration or qualifica tion of or with any federal or New York State governmental authority, except such as have been obtained or effected (except as to any consent, ap proval, authorization, registration or qualification that may be required under United States securities laws and state securities or Blue Sky laws, as to which such counsel need express no opinion). In addition, such counsel shall state that, based on inquiry of lawyers currently with such law firm who, according to the records of such law firm, have performed legal services for the Borrower since January 1, 1997, such counsel know of no legal or governmental proceedings pending to which the Borrower is a party or threatened against the Borrower, (A) asserting the inval idity of this Agreement, the Promissory Note, the Credit Agreement, the Letter Agreement or the Reimbursement Promissory Note or (B) seeking to prevent the performance of any of the transactions contemplated by this Agreement, the Promissory Note, the Credit Agreement, the Letter Agreement or the Reimbursement Promissory Note; provided that such counsel may regard any legal or governmental proceedings not to be threatened unless the potential litigant or governmental authority has manifested to such counsel a present intention to initiate such proceedings. In rendering the opinions expressed above, such counsel may assume (i) the authenticity of all documents submitted to them as originals and the conformity to originals of all documents submitted to them as copies, (ii) that the signatures on all documents that they have examined are genuine, (iii) each party (including the Borrower) to this Agreement, the Credit Agreement, the Promissory Note, the Letter Agreement and the Reimburse ment Promissory Note has satisfied those legal require ments that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it (except that no such assumption is made as to the Borrower regarding matters of the federal law of the United States of America or the law of the State of New York), there has been no material adverse and (iv) the accuracy as to factual matters of each document we have reviewed (including, without limitation, the accuracy of the representations and warranties of Ecopetrol in the Credit Agreement, this Agreement and the Letter Agreement. In addition, such counsel may state that (i) the opinion expressed in paragraph (i) above is subject to the effect on of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, to general principles of equity and to judicial application of foreign laws or governmental actions affecting creditors' rights, (ii) the condition enforceability of the obligations of the Borrower under the Credit Agreement, the Promissory Note, the Letter Agreement and the Reimbursement Promissory Note are subject to general principles of equity (financial regardless of whether such enforcement is sought in a proceeding in equity or otherwiseat law), prospects, earnings, business or properties (iii) the enforceability in the United States of the Companywaiver by the Company of its immunities from court jurisdiction and from legal process, except as set forth in or contemplated the Letter Agreement and the Credit Agreement, is subject to the limitations imposed by the United States Foreign Sovereign Immunities Act of 1976 and (iv) the enforceability of the indemnification provisions set forth in the Disclosure Package Letter Agreement may be subject to considerations of public policy. In rendering such opinions, such counsel may state that they (i) express on opinion as to Section 14 of this Agreement as to the subject matter jurisdiction base of any United States federal court to adjudicate any action relating to such agreement where jurisdiction based on diversity of citizenship under 20 U.S.C. ss. 1332 does not exist, (ii) note that the designation in such Section 14 of the federal courts of the United States for the Southern District of New York as one of the venues for legal actions or proceedings relating to this Agreement is (notwithstanding the waiver in Section 14 of this Agreement) subject to the power of such courts to trans fer actions pursuant to U.S.C. ss.1404(a) or to dismiss such actions or proceedings on the grounds that such a federal court is an inconvenient forum for such action or proceeding, and (iii) express no opinion as to Section 9.11 of the Credit Agreement relating to the continuing validity and enforceability of provisions in the Credit Agreement notwithstanding the ineffectiveness of other provisions. In rendering such opinions, such counsel may limit their opinions to the federal law of the United States of America and the Final Prospectus (exclusive law of any supplement thereto)the State of New York.
(d) The Guarantor Underwriter shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to youreceived an opinion, dated the Closing Date, of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Trust and the Depositor, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) The Depositor is a corporation duly incorporated and validly existing under the representations and warranties laws of the Guarantor in State of Delaware with all requisite corporate power and authority to execute, deliver and perform its obligations under the Transfer Agreement, this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;Declaration.
(ii) no stop order suspending the effectiveness The Declaration is a valid and binding agreement of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of Depositor, enforceable against the Act have been instituted orDepositor in accordance with its terms, except to the Guarantor’s knowledgeextent that enforcement thereof may be limited by (a) bankruptcy, threatened;insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights gener ally, and (b) general principles of equity (regard less of whether enforceability is considered in a proceeding at law or in equity).
(iii) since The Certificates, when duly and validly executed and authenticated by the date Trustee in the manner contemplated by the Declaration and delivered to and paid for by the Underwriter pursuant to this Agreement, will be validly issued and outstanding and entitled to the benefits of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); andDeclaration.
(iv) since the Execution Time, there has not been any decrease The statements contained in the rating of any Prospectus under the captions "The Eximbank Guaran tees", "The Promissory Note", "The Promissory Notes", "The Credit Agreements", "Description of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (Certificates", "The Liquidity Facility" and "The Liquidity Facilities", insofar as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of statements constitute a possible change in any such rating that does not indicate the direction summary of the possible changedocuments referred to therein, fairly present the information called for with respect to such documents.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Citicorp North America Inc)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters to purchase Securities pursuant to the Terms Agreement Underwriter are subject to the accuracy (as of the date hereof, and as of the Closing Date) of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofherein, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder hereunder, and to the following further conditions:
(a) The Company and the Guarantor Registration Statement shall have requested become effective and caused you shall have received notice thereof not later than 10:00 a.m., New York time, on the delivery day following the date of written opinionsthis Agreement, substantially or at such later time or on such later date as to which the Underwriter may agree in writing; on or prior to the forms Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that or a similar purpose shall have been instituted or shall be pending or, to the Underwriter's knowledge or to the knowledge of the Company, shall be contemplated by the Terms AgreementCommission; any request on the part of the Commission for additional information shall have been complied with to the satisfaction of the Commission; and no stop order shall be in effect denying or suspending effectiveness of such qualification nor shall any stop order proceedings with respect thereto be instituted or pending or threatened. If required, the Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at At the Closing Date, letters (which may refer to letters previously delivered to one or more of you)you shall have received the opinion, dated respectively as of the Execution Time and as of the Closing Date, of the Law Offices of Frank J. Hariton, Esq., counsex xxx xxx Xxxxxxy, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within counsel for the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing DateUnderwriter, to the effect that that:
(a) The Company has no subsidiaries, other than as set forth on the signers Registration Statement. The Company owns 100% of the issued and outstanding capital stock of each subsidiary free and clear of any lien, encumbrance or claim.
(b) Each of the Company and its subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of their respective jurisdictions of incorporation, with allrequisite corporate power and authority to own their properties and conduct their business as described in the Registration Statement and Prospectus and is duly qualified or licensed to do business as a foreign corporation and is in good standing in each other jurisdiction in which the ownership or leasing of their properties or conduct of their business requires such qualification except where the failure to qualify or be licensed will not have a material adverse effect;
(ii) the authorized capitalization of the Company as of the date set forth in the Prospectus as set forth under "Capitalization" in the Prospectus; all shares of the Company's outstanding Common Stock requiring authorization for issuance by directors have been duly authorized and upon payment of consideration therefor, will be validly issued, fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; to such counsel's knowledge the outstanding shares of Common Stock of the Company have not been issued in violation of the preemptive rights of any shareholder and the shareholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase, nor are there any restrictions upon the voting or transfer of any of the Stock except as provided in the Prospectus; the Common Stock, the Warrants, the Unit Purchase Option, and the Warrant Agreement conform in all material respects to the respective descriptions thereof contained in the Prospectus; the Shares have been, and the shares of Common Stock to be issued upon exercise of the Warrants and the Unit Purchase Option, upon issuance in accordance with the terms of such certificate Warrants, the Warrant Agreement and Unit Purchase Option will have carefully examined been duly authorized and, when issued and delivered in accordance with their respective terms, will be duly and validly issued, fully paid, non-assessable, free of preemptive rights and no personal liability will attach to the ownership thereof; all prior sales by the Company of the Company's securities have been made in compliance with or under an exemption from registration under the Act and applicable state securities laws; a sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Warrants and Unit Purchase Option and to the best of such counsel's knowledge, neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any registration rights;
(iii) this Agreement, the Unit Purchase Option, and the Warrant Agreement have been duly and validly authorized, executed, and delivered by the Company;
(iv) the certificates evidencing the shares of Common Stock comply with the Delaware General Corporation Law; the Warrants will be exercisable for shares of Common Stock in accordance with the terms of the Warrants and at the prices therein provided for;
(v) except as otherwise disclosed in the Registration Statement, such counsel knows of no pending or threatened legal or governmental proceedings to which the Disclosure PackageCompany is a party which would materially adversely affect the business, the Final Prospectus and any supplements property, financial condition, or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties operations of the Company or any of its subsidiaries; or which question the validity of the Securities, this Agreement, the Warrant Agreement, or the Unit Purchase Option, or of any action taken or to be taken by the Company pursuant to this Agreement, the Warrant Agreement, or the Unit Purchase Option; to such counsel's knowledge there are no governmental proceedings or regulations required to be described or referred to in the Agreement Registration Statement which are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed not so described or satisfied at or prior to the Closing Datereferred to;
(iivi) the execution and delivery of this Agreement, the Unit Purchase Option, or the Warrant Agreement and the incurrence of the obligations herein and therein set forth and the consummation of the transactions herein or therein contemplated, will not result in a breach or violation of, or constitute a default under the certificate or articles of incorporation or by-laws of the Company or its subsidiaries, or to the best knowledge of counsel in the performance or observance of any material obligations, agreement, covenant, or condition contained in any bond, debenture, note, or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture, or other agreement or instrument to which the Company or its subsidiaries is a party or by which they or any of their properties is bound or in violation of any order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality, or court, domestic or foreign, the result of which would have a Material Adverse Effect;
(vii) the Registration Statement has become effective under the Act, and to the best of such counsel's knowledge, (a) no stop order suspending the effectiveness of the Registration Statement has been issued is in effect, and (b) no proceedings for that purpose have been instituted or under Section 8A are pending before, or threatened by, the Commission; the Registration Statement and the Prospectus (except for the financial statements and other financial data contained therein, or omitted therefrom, as to which such counsel need express no opinion) as of the Effective Date comply as to form in all material respects with the applicable requirements of the Act have been instituted orand the Rules and Regulations;
(viii) at the time the Registration Statement was filed and at the time it initially became effective, such Registration Statement and the Prospectus (other than the financial statements included therein, as to which no opinion is rendered) complied as to form in all material respects with the requirements of the Act and the Regulations and nothing came to such counsel's attention which would lead such counsel to believe that either the Registration Statement or the Prospectus, at the time they initially became effective, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ix) all descriptions in the Registration Statement and the Prospectus, and any amendment or supplement thereto, of contracts, licenses, and other agreements to which the Company is a party are accurate and fairly present in all material respects the information required to be shown, and such counsel is familiar with all contracts, licenses and other agreements referred to in the Registration Statement and the Prospectus and any such amendment or supplement or filed as exhibits to the Company’s knowledgeRegistration Statement, threatenedand such counsel does not know of any contracts, licenses or agreements to which the Company is a party of a character required to be summarized or described therein or to be filed as exhibits thereto which are not so summarized, described or filed; and
(iiix) since no authorization, approval, consent, or license of any governmental or regulatory authority or agency is necessary in connection with the date authorization, issuance, transfer, sale, or delivery of the most recent financial statements included or incorporated Units by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in connection with the execution, delivery, and performance of this Agreement by the Company or contemplated in connection with the Disclosure Package and the Final Prospectus (exclusive taking of any supplement thereto)action contemplated herein, or the issuance of the Unit Purchase Option or the Securities underlying the Unit Purchase Option, other than registrations or qualifications of the Units under applicable state or foreign securities or Blue Sky laws and registration under the Act. Such opinion shall also cover such matters incident to the transactions contemplated hereby as the Underwriter or counsel for the Underwriter shall reasonably request. In rendering such opinion, such counsel may rely upon certificates of any officer of the Company or public officials as to matters of fact; and may rely as to all matters of law other than the law of the United States or of the States of Delaware upon opinions of counsel satisfactory to the Underwriter, in which case the opinion shall state that they have no reason to believe that the Underwriter and they are not entitled to so rely.
(c) All corporate proceedings and other legal matters relating to this Agreement, the Registration Statement, the Prospectus and other related matters shall be satisfactory to or approved by Berlack, Israels & Liberman LLX, xxxxsel to the Uxxxxxxxxer.
(d) The Guarantor Underwriter shall have furnished received a letter prior to you a certificate, signed by two executive officers the effective date of the Guarantor with specific knowledge Registration Statement and again on and as of each Closing Date from Simon Krowitz Bolin & Associatxx, X.X., xxxxxxxxxnt public accountants for the financial matters of Company, substantially in the Guarantor, form reasonably satisfactory acceptable to you, dated the Underwriter.
(e) At each Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor Company contained in the this Agreement are shall be true and correct on and as of the Closing Date in all material respects with the same effect as if made on and as of the Closing Date and the Guarantor has complied with Company shall have performed all the agreements of its obligations hereunder and satisfied all the conditions on its part to be performed or satisfied at or prior to the such Closing Date;
; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose the Prospectus and any amendments or under Section 8A of supplements thereto shall contain all statements which are required to be stated therein in accordance with the Act have been instituted orand the Rules and Regulations, and shall in all material respects conform to the Guarantor’s knowledgerequirements thereof, threatened;
and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the date respective dates as of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)which information is given, there has been no material adverse effect on change, or to the Company's knowledge, any development involving a prospective material adverse change, in the business, properties, condition (financial or otherwise), prospectsresults of operations, earningscapital stock, business long-term or properties short-term debt, or general affairs of the Guarantor Company and its subsidiariessubsidiaries from that set forth in the Registration Statement and the Prospectus, taken except changes which the Registration Statement and Prospectus indicate might occur after the effective date of the Registration Statement, and the Company and its subsidiaries shall not have incurred any material liabilities or entered into any material agreement not in the ordinary course of business other than as a whole, referred to in the Registration Statement and Prospectus; (iv) except as set forth in the Prospectus, no action, suit, or contemplated proceeding at law or in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by equity shall be pending or guaranteed by threatened against the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent its subsidiaries which would be required to the Execution Time or, if earlier, the dates as of which information is given be set forth in the Registration Statement (exclusive of Statement, and no proceedings shall be pending or threatened against the Company or its subsidiaries before or by any amendment thereof)commission, the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any changeboard, or any development involving a prospective changeadministrative agency in the United States or elsewhere, in wherein an unfavorable decision, ruling, or affecting finding would materially and adversely affect the business, property, condition (financial or otherwise), earningsresults of operations, business or properties general affairs of the Guarantor and Company or its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement theretov) the effect of which isUnderwriter shall have received, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to at the Closing Date, a certificate signed by each of the Company President and the Guarantor shall have furnished to principal operating officer of the Underwriters such further informationCompany, certificates and documents dated as of each Closing Date, evidencing compliance with the Underwriters may reasonably requestprovisions of this subsection (e).
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of -------------------------------------- the Underwriters to purchase Securities pursuant to and pay for the Terms Agreement are Notes on the Issuance Date shall be subject to the accuracy in all material respects of the respective representations and warranties on the part of each of the Company Issuer, the Seller and IOS Capital herein, in the Guarantor herein contained, to Assignment and Servicing Agreement and in the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofIndenture, to the performance by each the Issuer, the Seller and IOS Capital in all material respects of their respective obligations hereunder, under the Company Assignment and Servicing Agreement and under the Guarantor of all of its respective covenants and other obligations hereunder Indenture and to the following further additional conditions:
(a) The Company Issuer, the Seller and the Guarantor IOS Capital shall each have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
delivered a certificate (b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of youan "Officer's Certificate"), dated respectively as of the Execution Time and as of the Closing Issuance Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Dateits Vice President and its Chief Financial Officer, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of made by the Company Issuer, the Seller or IOS Capital (as the case may be) in this Agreement, the Indenture and the Assignment and Servicing Agreement are true and correct in all material respects at and as of the date of such Officer's Certificate as if made on and as of such date (except to the Closing Date with extent they expressly relate to an earlier date);
(ii) the same effect Issuer, the Seller or IOS Capital (as if made on the Closing Date and the Company case may be) has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement, the Indenture and the Assignment and Servicing Agreement at or prior to the Closing Datedate of such Officer's Certificate;
(iii) nothing has come to such officer's attention that would lead him to believe that the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) such officer is not aware of (A) any request of the Commission for further amendment of the Registration Statement or the Final Prospectus for any additional information, (B) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceeding for that purpose or (C) any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the threatening of any proceeding for that purpose.
(b) You shall have received a favorable opinion from Xxx Xxx, Esq. (subject to customary and usual qualifications), dated the Issuance Date and reasonably satisfactory in form and substance to the Underwriters and their counsel with respect to or to the effect that: (i) the existence and good standing of IOS Capital, (ii) that the Issuer, the Seller and IOS Capital, as applicable, have the corporate authority to perform this Agreement, the Assignment and Servicing Agreement, the Indenture and the Insurance Agreement (collectively, the "Transaction Documents") and the transactions contemplated herein and therein; (iii) the due authorization, execution, delivery and enforceability of this Agreement and the other Transaction Documents, as applicable, by the Issuer, the Seller and IOS Capital; (iv) each of this Agreement and the other Transaction Documents are the legal, valid and binding obligation of the Issuer, the Seller and IOS Capital, as applicable, enforceable against each of them in accordance with its terms (subject to customary exceptions relating to bankruptcy and laws affecting creditors' rights); (v) the Notes have been duly authorized, executed and delivered by the Issuer and constitute the legal, valid and binding obligations of the Issuer enforceable in accordance with their terms (subject to customary exceptions as to bankruptcy and laws affecting creditors' rights) and are entitled to the benefits of the Indenture; (vi) the issuance and sale of the Notes by the Issuer, the performance of this Agreement by the Issuer, the Seller and IOS Capital and compliance by the Issuer, the Seller and IOS Capital with the terms of the Transaction Documents, as applicable, and the consummation of the transactions contemplated herein and therein will not conflict with the organizational documents of the Issuer, the Seller or IOS Capital, or to the best of such counsel's knowledge, any other contract to which the Issuer, the Seller or IOS Capital is a party or by which any of them is bound; (vii) to the best of such counsel's knowledge, there is no legal or governmental proceeding threatened or pending against the Issuer, the Seller or IOS Capital which would have a material adverse effect on the issuance of the Notes, the performance by the Issuer, the Seller or IOS Capital of this Agreement or compliance by the Issuer, the Seller or IOS Capital with the terms of the Transaction Documents to which they are parties, respectively; and (viii) on the Issuance Date the Registration Statement is effective, and, that to the best of such counsel's knowledge no stop order suspending the effectiveness of the Registration Statement has been issued or is threatened, and no proceedings for that purpose or under Section 8A with respect to the statements contained in the sections entitled "The Issuer", "The Servicer and the Originator" and "The Asset Pool" in the Prospectus Supplement and "The Issuer", "The Asset Pools", "Management's Discussion and Analysis of Financial Condition", "Directors and Executive Officers of the Act have been instituted orManager of the Issuer", "The Leases" and "The Originator's Leasing Business" in the Base Prospectus nothing came to such counsel's attention that leads such counsel to believe that any of such sections (as of the Company’s knowledge, threatened; and
(iii) since Effective Date or the date of the most recent financial Final Prospectus) 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 included or incorporated by reference therein, in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties light of the Companycircumstances under which they were made not misleading (in each case other than the financial and statistical information and notes and schedules thereto, except as set forth in or contemplated in to which such counsel need express no opinion). In rendering such opinion, counsel may rely, to the Disclosure Package extent deemed proper and the Final Prospectus (exclusive as stated therein, as to matters of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive fact on certificates of responsible officers of the Guarantor with specific knowledge of Issuer, the financial Seller or IOS Capital and public officials and as to matters of state law of jurisdictions other than the Guarantorjurisdictions in which such counsel is admitted to practice, reasonably on opinions of local counsel satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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 changeUnderwriters.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the Underwriters to purchase Securities pursuant to the Terms Agreement are subject to the accuracy of the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s 's officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) The Company and the Guarantor shall have requested and caused the delivery General Counsel of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, Company to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, his opinion dated the Closing DateDate and addressed to the Representatives, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) The Company (1) is a duly organized and validly existing company under the representations laws of Brazil, (2) has the full corporate power and warranties of authority necessary to own its property and assets and to conduct its business as now being conducted, (3) is duly qualified and authorized to do business in Brazil and (4) has all power and authority necessary to own or hold its respective properties and to conduct the Company businesses in which it is engaged, except where the failure to be so qualified or have such power or authority would not, individually or in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act aggregate, have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no a material adverse effect on the performance of its obligations under the Securities or on the condition (financial or otherwise), prospects, earnings, business or properties of the CompanyCompany and its subsidiaries, except taken as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)a whole.
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness Company has full right, power and authority to execute and deliver each of the Registration Statement Indenture, the Agreement and the Securities and to perform its respective obligations thereunder, and all corporate action required to be taken for the due and proper authorization, execution and delivery of the Indenture, the Agreement and the Securities and the consummation of the transactions contemplated thereby has been issued duly and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatenedvalidly taken;
(iii) since the date Each of the most recent financial statements included Agreement and the Indenture has been duly authorized, executed and delivered by the Company, and the Securities have been duly authorized by the Company;
(iv) The execution, delivery and performance by the Company of each of the Agreement and the Indenture, the issuance and sale of the Securities and compliance by the Company with the terms thereof and the consummation of the transactions contemplated by each of the Agreement and the Indenture will not conflict with or incorporated by reference result in a breach or violation of (i) the bylaws of the Company, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which its or their property is subject, or (iii) any existing statute, law, rule, regulation, judgment, order or decree applicable to the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority in Brazil having jurisdiction over the Company or any of its properties, except in the Disclosure Package case of (ii) and (iii) as would not, individually or in the Final Prospectus (exclusive of any supplement thereto)aggregate, there has been no have a material adverse effect on the performance of the Agreement or the Indenture or on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(v) To the best of such counsel's knowledge, except as set forth described in the Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending in Brazil to which the Company or any of its subsidiaries is a party which could reasonably be expected to result in a material adverse change in the financial position, stockholders' equity, results of operations, business operations or properties of the Company and its subsidiaries taken as a whole or on the performance by the Company of its obligations under the Securities and the Agreement and the Indenture; and to the best of his knowledge, no such investigations, actions, suits or proceedings are threatened or contemplated by any Brazilian governments or regulatory authority or threatened by others in Brazil. In rendering the Disclosure Package above opinion, such counsel shall additionally state that, based on his examination of the Registration Statement, the Prospectus and the Final Prospectus (exclusive of any each amendment thereof or supplement thereto) , although he is not passing upon and does not assume any responsibility for the effect of which isaccuracy, in your sole judgment, so material and adverse as to make it impractical completeness or inadvisable to proceed with the offering or delivery fairness of the Securities as contemplated by statements contained in the Registration Statement (exclusive of and the Prospectus and any amendment thereof) or supplement thereto, on the basis of the foregoing, nothing has come to his attention that would lead him to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and on the Disclosure Package Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no such statement need be made by such counsel with respect to the financial statements and other financial and statistical data or information concerning mineral reserves included in the Final Registration Statement, the Prospectus (exclusive of or in any amendment or supplement thereto).
(fb) Subsequent The Company shall have requested and caused Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special United States counsel to the Company, or such other firm as may be reasonably acceptable to you, to the effect that:
(i) The Indenture has been duly executed and delivered by the Company under the law of the State of New York and qualified under the Trust Indenture Act, and is a valid, binding and enforceable agreement of the Company.
(ii) The Securities have been duly executed and delivered by the Company under the law of the State of New York and are the valid, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture.
(iii) The statements set forth in the Prospectus under the heading "Description of Debt Securities" and the description of the Securities in the Prospectus, insofar as such statements purport to summarize certain provisions of the Securities and the Indenture, provide a fair summary of such provisions, and the statements (if any) set forth in the Prospectus under the heading "Taxation-Certain United States Tax Considerations," insofar as such statements purport to summarize certain federal income tax laws of the United States, constitute a fair summary of the principal U.S. federal income tax consequences of an investment in the Securities.
(iv) The Agreement has been duly executed and delivered by the Company under the law of the State of New York.
(v) The issuance and sale of the Securities to Underwriters pursuant to this Agreement, and the performance by the Company of its obligations in the Agreement, the Indenture and the Securities, do not require any consent, approval, authorization, registration or qualification of or with any governmental authority of the United States or the State of New York, except such as have been obtained or effected under the Act, the Exchange Act and the Trust Indenture Act (but such counsel need not express any opinion as to any consent, approval, authorization, registration or qualification that may be required under state securities or Blue Sky laws).
(vi) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus will not be an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(vii) Under the laws of the State of New York relating to submission to jurisdiction, the Company, pursuant to Section 11 of this Agreement, (i) has validly and irrevocably submitted to the personal jurisdiction of any state or federal court located in the City, County and State of New York in any action arising out of or related to the Purchase Agreement, (ii) to the fullest extent permitted by law, has validly and irrevocably waived any objection to the venue of a proceeding in any such court, and (iii) has validly appointed Rio Doce America, Inc. as its initial authorized agent for the purpose described in Section 11 of this Agreement. Such counsel shall additionally state in such opinion or in a separate letter that, although it is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus (except to the extent provided in subsection (iii) of this Section (b)), (A) nothing has come to the attention of such counsel that would lead such counsel to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no such statement need be made by such counsel with respect to the financial statements and other financial and statistical data or information concerning mineral reserves included in the Registration Statement, the Prospectus or in any amendment or supplement thereto), (ii) no information has come to such counsel's attention that causes it to believe that the documents incorporated by reference in the Registration Statement and the Prospectus (except the financial statements and schedules and other financial and statistical data or information concerning mineral reserves included therein, as to which such counsel need express no view), as of the Execution Time, there shall were not have been appropriately responsive in all material respects to the requirements of the Exchange Act, (iii) such counsel does not know of any decrease contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be described in the rating Registration Statement or the Prospectus that are not filed or described as required and (iv) such counsel confirms that (based solely upon a telephonic confirmation from a representative of the Commission) the Registration Statement is effective under the Act and, to the best of such counsel's knowledge, no stop order with respect thereto has been issued, and no proceeding for that purpose has been instituted or threatened, by the Commission. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior United States, to the Closing Dateextent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably requestpublic officials.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Your obligations, as Underwriter to purchase Securities pursuant to and pay for the Terms Agreement are Shares, as provided herein, shall be subject to the accuracy in all material respects, as of the date hereof and as of the Closing Date, of the representations and warranties on the part of each of the Company and the Guarantor herein containedcontained herein, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further additional conditions:
(a) The Company All filings of the Prospectus required by Rule 424 of the Rules and the Guarantor Regulations shall have requested been made. No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and caused no proceeding for that purpose shall have been initiated or, to your knowledge or the delivery knowledge of written opinionsthe Company, substantially in the forms threatened or contemplated by the Terms AgreementCommission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to your reasonable satisfaction.
(b) The Guarantor You shall not have requested and caused PricewaterhouseCoopers, independent auditors for disclosed in writing to the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, Company on or prior to have furnished to you, at the Execution Time and at the Closing Date, letters that the Registration Statement or Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of your counsel, is material, or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(which may refer to letters previously delivered to c) On the Closing Date, you shall have received one or more of you), opinions from counsel for the Company addressed to you and dated respectively the Closing Date as of to the Execution Time and as of respective matters set forth in Schedule I attached hereto.
(d) You shall have received on the Closing Date, from Xxxxxxx and Xxxxxx, your counsel, such opinion or opinions, dated the Closing Date with respect to the incorporation of the Company, the validity of the Shares, the Registration Statement, the Prospectus and other related matters as you may reasonably require; the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass on such matters.
(e) You shall have received at or prior to the Closing Date from Xxxxxxx and Xxxxxx a memorandum or memoranda, in form and substance satisfactory to you, with respect to the qualification for offering and sale by you of the Shares under state securities or Blue Sky laws of such jurisdictions as you may have designated to the Company.
(f) On the date of this Agreement and on the Closing Date, you shall have received from Ernst & Young LLP, a letter or letters, dated the date of this Agreement and the Closing Date, respectively, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm accountants with respect to the Company within the meaning of the Act and the Exchange Act published Rules and covering Regulations, and stating to the matters that are ordinarily covered by “comfort letters” drafted effect set forth in accordance with Statement of Accounting Standards No. 72Schedule II hereto.
(cg) The Company shall have furnished to you a certificateExcept as contemplated in or incorporated by reference into the Prospectus, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of neither the Company in the Agreement are true and correct on and as nor any of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act subsidiaries shall have been instituted or, to the Company’s knowledge, threatened; and
(iii) sustained since the date of the most recent latest audited financial statements included or incorporated by reference in the Disclosure Package Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree; and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, subsequent to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive Prospectus, neither the Company nor any of its subsidiaries shall have incurred any supplement thereto)material liability or obligation, direct or contingent, or entered into material transactions, and there shall not have been any change, change in the capital stock or long-term debt of the Company and its subsidiaries or any development involving a prospective change, material change in or affecting the condition (financial or otherwiseother), earningsnet worth, business business, affairs, management, prospects or properties results of operations of the Guarantor and Company or its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which iswhich, in any such case described in clause (i) or (ii), is in your sole judgment, judgment so material and or adverse as to make it impractical impracticable or inadvisable to proceed with the public offering or the delivery of the Securities as Shares being delivered on the Closing Date on the terms and in the manner contemplated in the Prospectus.
(h) There shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the American Stock Exchange or the establishing on such exchanges by the Commission or by such exchanges of minimum or maximum prices which are not in force and effect on the date hereof; (ii) a general moratorium on commercial banking activities declared by either federal or New York State authorities; (iii) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any such event specified in this clause (iii) in your judgment is material and adverse and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares in the manner contemplated in the Prospectus; (iv) any calamity or crisis, change in national, international or world affairs, act of God, change in the international or domestic markets, or change in the existing financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in this clause (iv) is material and adverse and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares in the manner contemplated in the Prospectus; or (v) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule, or order of any court or other governmental authority, or the taking of any action by any federal, state or local government or agency in respect of fiscal or monetary affairs, if the effect of any such event specified in this clause (v) in your judgment is material and adverse and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares in the manner contemplated in the Prospectus.
(i) You shall have received certificates, dated the Closing Date and signed by the President and the Chief Financial Officer of the Company stating that (i) they have carefully examined the Registration Statement (exclusive of and the Prospectus as amended or supplemented and all documents incorporated by reference therein and nothing has come to their attention that would lead them to believe that either the Registration Statement or the Prospectus, or any amendment thereof) or supplement thereto or any documents incorporated by reference therein as of their respective effective, issue or filing dates, contained, and the Disclosure Package Prospectus as amended or supplemented and all documents incorporated by reference therein and when read together with the Final Prospectus documents incorporated by reference therein, at the Closing Date, contains any untrue statement of a material fact, or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and, that (exclusive ii) all representations and warranties made herein by the Company are true and correct in all material respects at the Closing Date, with the same effect as if made on and as of any supplement thereto)the Closing Date, and all agreements herein to be performed by the Company on or prior to the Closing Date have been duly performed in all material respects.
(fj) Subsequent to the Execution Time, there The Company shall not have failed, refused, or been unable, at or prior to the Closing Date to have performed in all material respects any decrease in the rating of agreement on their part to be performed or any of the debt securities issued conditions herein contained and required to be performed or satisfied by them at or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior prior to the Closing Date, the .
(k) The Company and the Guarantor shall have furnished to you at the Underwriters Closing Date such further informationother certificates as you may have reasonably requested as to the accuracy, on and as of the Closing Date, of the representations and warranties of the Company herein and as to the performance by the Company of the(k) The Company shall have furnished to you at the Closing Date such other certificates as you ir obligations hereunder.
(l) The Shares shall have been approved for trading upon official notice of issuance on the New York Stock Exchange. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to you and to Xxxxxxx and Xxxxxx, your counsel. The Company will furnish you with such conformed copies of such opinions, certificates, letters and documents as the Underwriters you may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Healthcare Realty Trust Inc)
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters to purchase Securities pursuant to and pay for the Terms Agreement are Class A Certificates on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of each of the Company Bank contained herein as of the Execution Time and the Guarantor herein containedClosing Date, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers Bank made in any certificate furnished certificates delivered pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all Bank of its respective covenants and other obligations hereunder and to the following further additional conditions:
(a) The Company and If the Guarantor Registration Statement has not become effective prior to the Execution Time, unless the Underwriters shall agree in writing to a later time, the Registration Statement shall have requested become effective not later than (i) 6:00 p.m. New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 p.m. New York City time on such date or (ii) 12:00 noon on the business day following the day on which the public offering price was determined, if such determination occurred after 3:00 p.m. New York City time on such date; if filing of the Prospectus, or any supplements thereto, is required pursuant to Rule 424(b), the Prospectus, and caused the delivery of written opinionsany supplements thereto, substantially shall have been filed in the forms contemplated manner and within the time period required by Rule 424(b); and no stop order suspending the Terms Agreementeffectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Guarantor Bank shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you Underwriters a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, signed by its Chairman of the Board, President, Vice Chairman of the Board, Executive Vice President, Senior Vice President, Vice President, principal financial officer, principal accounting officer, treasurer or cashier to the effect that the signers signer of such certificate have has carefully examined the Registration StatementUnderwriting Agreements, the Disclosure PackagePooling and Servicing Agreement, the Final Loan Agreement, the Prospectus (and any supplements or amendments thereto, ) and the Terms Agreement Registration Statement and that:
(i) the representations and warranties of the Company Bank in the this Agreement are true and correct at and as of the Closing Date as if made on and as of the Closing Date with (except to the same effect extent they expressly relate to an earlier date, in which case the representations and warranties of the Bank are true and correct as if made on of such earlier date);
(ii) the Closing Date and the Company Bank has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date;
(iiiii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Company’s knowledgeknowledge of the signer, threatened; and
(iiiiv) since the date of the most recent financial statements included or incorporated by reference in of the Disclosure Package and Bank delivered to the Final Prospectus (exclusive of any supplement thereto)Underwriters pursuant to Section 1(g) hereof, there has been no material adverse effect on change in the condition (financial or otherwise), prospects, earnings, business or properties ) of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, Bank whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Registration Statement and the Final Prospectus Prospectus.
(exclusive c) The Underwriters shall have received from Xxxxxx X. Xxxxxxx, Senior Vice President and General Counsel of any supplement theretoUCS, a favorable opinion dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel to the Underwriters, to the effect that:
(i) UCS has been duly organized as a corporation and is validly existing and in good standing under the laws of the State of Delaware, is duly qualified to do business and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, and has full corporate power and authority to own its properties, to conduct its business as described in the Registration Statement and the Prospectus, to enter into and perform its obligations under the Underwriting Agreements, the Loan Agreement, the Depository Agreement and the Pooling and Servicing Agreement and to perform its obligations and transactions contemplated hereby and thereby;
(ii) the effect Pooling and Servicing Agreement, the Loan Agreement, the Depository Agreement, the Underwriting Agreements and the Certificates have each been duly authorized, executed and delivered by the Bank;
(iii) neither the execution nor the delivery of which isthe Underwriting Agreements, in your sole judgmentthe Pooling and Servicing Agreement, so material and adverse as to make it impractical the Loan Agreement or inadvisable to proceed with the offering Depository Agreement nor the issuance or delivery of the Securities as contemplated by Certificates, nor the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating consummation of any of the debt securities issued by transactions contemplated herein or guaranteed by either therein, nor the Company fulfillment of the terms of the Certificates, the Underwriting Agreements, the Pooling and Servicing Agreement, the Loan Agreement or the Guarantor Depository Agreement will conflict with or violate, result in a material breach of or constitute a default under (A) any term or provision of the charter or by-laws of UCS or the Bank or any statute or regulation currently applicable to UCS or the Bank, (B) any term or provision of any order known to such counsel to be currently applicable to UCS or the Bank of any court, regulatory body, administrative agency or governmental body having jurisdiction over UCS or the Bank, or (C) any term or provision of any indenture or other agreement or instrument known to such counsel to which UCS or the Bank is a party or by which UCS or any “nationally recognized statistical rating organization” of their properties are bound;
(iv) except as defined otherwise disclosed in the Prospectus (and any supplements thereto) or the Registration Statement, there is no pending or, to the best knowledge of such counsel, threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator with respect to the Trust, the Certificates, the Pooling and Servicing Agreement, the Underwriting Agreements, the Loan Agreement or the Depository Agreement or any of the transactions contemplated herein or therein or with respect to UCS or the Bank which, in the case of any such action, suit or proceeding with respect to UCS or the Bank if adversely determined, would have a material adverse effect on the Certificateholders or the Trust or upon the ability of UCS or the Bank to perform its obligations under the Pooling and Servicing Agreement.
(v) no approval, authorization, consent, order, registration, filing, qualification, license or permit of or with any court or governmental agency or body is required for purposes the execution and delivery by UCS or the Bank of Rule 436(gthe Certificates or any of the transactions contemplated in the Underwriting Agreements, the Pooling and Servicing Agreement, the Loan Agreement or the Depository Agreement, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction inside the United States in connection with the purchase and distribution of the Certificates by the Underwriters and the Class B Underwriters and such filings or other approvals (specified in such opinion) as have been made or obtained;
(d) The Underwriters shall have received from counsel to the Bank, a favorable opinion dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel to the Underwriters, to the effect that:
(i) the Pooling and Servicing Agreement and the Loan Agreement have each been duly authorized, executed and delivered by the Bank and each constitutes the legal, valid and binding agreement of the Bank enforceable in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws affecting creditors' rights generally from time to time in effect and to the application of general principles of equity);
(ii) the Underwriting Agreements have been duly authorized, executed and delivered by the Bank;
(iii) the Certificates have been duly authorized and, when executed and authenticated in accordance with the terms of the Pooling and Servicing Agreement and in the case of the Class A Certificates delivered to and paid for by the Underwriters pursuant to this Agreement, and, in the case of the Class B Certificates, delivered to and paid for by the Class B Underwriters pursuant to the Class B Underwriting Agreement, will be validly issued and outstanding, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws affecting creditors' rights generally from time to time in effect and to the application of general principles of equity) and will be entitled to the benefits of the Pooling and Servicing Agreement;
(iv) neither the execution nor the delivery of the Underwriting Agreements, the Pooling and Servicing Agreement, the Loan Agreement or the Depository Agreement nor the issuance or delivery of the Certificates, nor the consummation of any of the transactions contemplated herein or therein, nor the fulfillment of the terms of the Certificates, the Underwriting Agreements, the Pooling and Servicing Agreement, the Loan Agreement or the Depository Agreement will conflict with or violate, result in a material breach of or constitute a default under any Federal or New York statute or regulation currently applicable to the Trust;
(v) no approval, authorization, consent, order, registration, filing, qualification, license or permit of or with any Federal or New York court or governmental body or agency is required for the consummation by the Trust of the transactions contemplated in the Underwriting Agreements, the Pooling and Servicing Agreement, the Depository Agreement or the Loan Agreement or in connection with the issuance of the Certificates, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction inside the United States in connection with the purchase and distribution of the Class A Certificates by the Underwriters and the Class B Underwriters and such filings or approvals as have been made and obtained;
(vi) the Registration Statement has become effective under the Act) ; any required filing of the Prospectus or any notice given supplements thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 threatened; the Registration Statement and the Prospectus (and any supplements thereto) (other than financial and statistical information contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder;
(vii) the Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended. The Trust is not now, and following the sale of the Certificates to the Underwriters and the Class B Underwriters will not be, required to be registered under the Investment Company Act of 1940, as amended;
(viii) such counsel has no reason to believe that at the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (and any supplements thereto) includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (other than financial and statistical information contained therein as to which such counsel need express no opinion);
(ix) the Certificates, the Underwriting Agreements, the Loan Agreement and the Pooling and Servicing Agreement conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus (and any supplements thereto); and
(x) the statements in the Registration Statement under the heading "Certain Legal Aspects of the Receivables" (other than "Consumer Protection Laws") to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, are correct in all material respects. In rendering such opinion counsel may rely (A) as to clauses (i), (ii) and (xi) of this paragraph (d), insofar as they relate to the Bank, on the opinion of Xxxxxx X. Xxxxxxx, General Counsel of UCS, (B) as to matters involving the application of laws other than the General Corporation Law of the State of Delaware or laws of any intended or potential decrease jurisdiction other than the State of New York and the United States, to the extent deemed proper and stated in any such rating or opinion, upon the opinion of a possible change in any other counsel of good standing believed by such rating that does not indicate counsel to be reliable and acceptable to the direction Underwriters and counsel to the Underwriters, and (C) as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of the possible changeTrust, the Bank and public officials.
(ge) Prior The Underwriters shall have received from Cravath, Swaine & Xxxxx, (i) in its capacity as counsel to the Underwriters, a favorable opinion dated the Closing Date, the Company and the Guarantor shall have furnished with respect to the Underwriters issuance and sale of the Certificates, the Pooling and Servicing Agreement, the Registration Statement, the Prospectus and such further information, certificates and documents other related matters as the Underwriters may reasonably request.require; and (ii) in its capacity as special Federal tax and ERISA counsel for the Bank and the Trust, a favorable opinion dated the Closing Date, to the effect that the statements in the Registration Statement and the Basic Prospectus under the heading "Tax Matters" (other than "Limits of the Discussion") accurately describe the material Federal income tax consequences to holders of the Certificates, and the statements in the Registration Statement and the Basic Prospectus under the heading "Benefit plan investors", to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material consequences to holders of the Certificates under ERISA; and the Bank shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass on all such matters. In giving their opinion, Xxxxxxx, Xxxxxx & Xxxxx may rely (A) upon the opinions of counsel delivered pursuant to subsection (c) above, (B) as to matters involving the application of laws of any jurisdiction other than the State of New York, the United States or the General Corporation Law of the State of Delaware, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable, and (C) as to matters of fact, to the extent deemed proper and as stated therein on certificates of responsible officers of the Trust, the Bank, and public
Appears in 1 contract
Samples: Class a Underwriting Agreement (Universal Card Services Corp)
Conditions of Underwriters’ Obligation. The obligations of -------------------------------------- the Underwriters to purchase Securities pursuant to and pay for the Terms Agreement are Notes on the Issuance Date shall be subject to the accuracy in all material respects of the respective representations and warranties on the part of each of the Company Issuer, the Seller and IOS Capital herein, in the Guarantor herein contained, to Assignment and Servicing Agreement and in the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofIndenture, to the performance by each the Issuer, the Seller and IOS Capital in all material respects of their respective obligations hereunder, under the Company Assignment and Servicing Agreement and under the Guarantor of all of its respective covenants and other obligations hereunder Indenture and to the following further additional conditions:
(a) The Company Issuer, the Seller and the Guarantor IOS Capital shall each have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
delivered a certificate (b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of youan "Officer's Certificate"), dated respectively as of the Execution Time and as of the Closing Issuance Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Dateits Vice President and its Chief Financial Officer, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of made by the Company Issuer, the Seller or IOS Capital (as the case may be) in this Agreement, the Indenture and the Assignment and Servicing Agreement are true and correct in all material respects at and as of the date of such Officer's Certificate as if made on and as of such date (except to the Closing Date with extent they expressly relate to an earlier date);
(ii) the same effect Issuer, the Seller or IOS Capital (as if made on the Closing Date and the Company case may be) has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement, the Indenture and the Assignment and Servicing Agreement at or prior to the Closing Datedate of such Officer's Certificate;
(iii) nothing has come to such officer's attention that would lead him to believe that the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) such officer is not aware of (A) any request of the Commission for further amendment of the Registration Statement or the Final Prospectus for any additional information, (B) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceeding for that purpose or (C) any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the threatening of any proceeding for that purpose.
(b) You shall have received a favorable opinion from Xxx Xxx, Esq. (subject to customary and usual qualifications), dated the Issuance Date and reasonably satisfactory in form and substance to the Underwriters and their counsel with respect to or to the effect that: (i) the existence and good standing of IOS Capital, (ii) that the Issuer, the Seller and IOS Capital, as applicable, have the corporate authority to perform this Agreement, the Assignment and Servicing Agreement, the Indenture and the Insurance Agreement (collectively, the "Transaction Documents") and the transactions contemplated herein and therein; (iii) the due authorization, execution, delivery and enforceability of this Agreement and the other Transaction Documents, as applicable, by the Issuer, the Seller and IOS Capital; (iv) each of this Agreement and the other Transaction Documents are the legal, valid and binding obligation of the Issuer, the Seller and IOS Capital, as applicable, enforceable against each of them in accordance with its terms (subject to customary exceptions relating to bankruptcy and laws affecting creditors' rights); (v) the Notes have been duly authorized, executed and delivered by the Issuer and constitute the legal, valid and binding obligations of the Issuer enforceable in accordance with their terms (subject to customary exceptions as to bankruptcy and laws affecting creditors' rights) and are entitled to the benefits of the Indenture; (vi) the issuance and sale of the Notes by the Issuer, the performance of this Agreement by the Issuer, the Seller and IOS Capital and compliance by the Issuer, the Seller and IOS Capital with the terms of the Transaction Documents, as applicable, and the consummation of the transactions contemplated herein and therein will not conflict with the organizational documents of the Issuer, the Seller or IOS Capital, or to the best of such counsel's knowledge, any other contract to which the Issuer, the Seller or IOS Capital is a party or by which any of them is bound; (vii) to the best of such counsel's knowledge, there is no legal or governmental proceeding threatened or pending against the Issuer, the Seller or IOS Capital which would have a material adverse effect on the issuance of the Notes, the performance by the Issuer, the Seller or IOS Capital of this Agreement or compliance by the Issuer, the Seller or IOS Capital with the terms of the Transaction Documents to which they are parties, respectively; and (viii) on the Issuance Date the Registration Statement is effective, and, that to the best of such counsel's knowledge no stop order suspending the effectiveness of the Registration Statement has been issued or is threatened, and no proceedings for that purpose or under Section 8A of the Act have been instituted or, with respect to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference contained in the Disclosure Package sections entitled "The Issuer", "The Servicer and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package Originator" and the Final Prospectus (exclusive of any supplement thereto).
(d) "The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.Asset Pool" in
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations -------------------------------------- of the Underwriters to purchase Securities pursuant to and pay for the Terms Agreement are Notes on the Issuance Date shall be subject to the accuracy in all material respects of the respective representations and warranties on the part of each of the Company Issuer, the Seller and IOS Capital herein, in the Guarantor herein contained, to Assignment and Servicing Agreement and in the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofIndenture, to the performance by each the Issuer, the Seller and IOS Capital in all material respects of their respective obligations hereunder, under the Company Assignment and Servicing Agreement and under the Guarantor of all of its respective covenants and other obligations hereunder Indenture and to the following further additional conditions:
(a) The Company Issuer, the Seller and the Guarantor IOS Capital shall each have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
delivered a certificate (b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of youan "Officer's Certificate"), dated respectively as of the Execution Time and as of the Closing Issuance Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Dateits Vice President and its Chief Financial Officer, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of made by the Company Issuer, the Seller or IOS Capital (as the case may be) in this Agreement, the Indenture and the Assignment and Servicing Agreement are true and correct in all material respects at and as of the date of such Officer's Certificate as if made on and as of such date (except to the Closing Date with extent they expressly relate to an earlier date);
(ii) the same effect Issuer, the Seller or IOS Capital (as if made on the Closing Date and the Company case may be) has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement, the Indenture and the Assignment and Servicing Agreement at or prior to the Closing Datedate of such Officer's Certificate;
(iiiii) no nothing has come to such officer's attention that would lead him to believe that the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) such officer is not aware of (A) any request of the Commission for further amendment of the Registration Statement or the Final Prospectus for any additional information, (B) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings or the initiation or threatening of any proceeding for that purpose or under Section 8A (C) any notification with respect to the suspension of the Act qualification of the Notes for sale in any jurisdiction or the threatening of any proceeding for that purpose.
(b) You shall have been instituted orreceived a favorable opinion from Xxx Xxx, Esq. (subject to customary and usual qualifications), dated the Issuance Date and reasonably satisfactory in form and substance to the Company’s knowledgeUnderwriters and their counsel with respect to or to the effect that: (i) the existence and good standing of IOS Capital, threatened(ii) that the Issuer, the Seller and IOS Capital, as applicable, have the corporate authority to perform this Agreement, the Assignment and Servicing Agreement, the Indenture and the Insurance Agreement (collectively, the "Transaction Documents") and the transactions contemplated herein and therein; and
(iii) since the date due authorization, execution, delivery and enforceability of this Agreement and the other Transaction Documents, as applicable, by the Issuer, the Seller and IOS Capital; (iv) each of this Agreement and the other Transaction Documents are the legal, valid and binding obligation of the most recent financial statements included or incorporated Issuer, the Seller and IOS Capital, as applicable, enforceable against each of them in accordance with its terms (subject to customary exceptions relating to bankruptcy and laws affecting creditors' rights); (v) the Notes have been duly authorized, executed and delivered by reference the Issuer and constitute the legal, valid and binding obligations of the Issuer enforceable in accordance with their terms (subject to customary exceptions as to bankruptcy and laws affecting creditors' rights) and are entitled to the Disclosure Package benefits of the Indenture; (vi) the issuance and sale of the Notes by the Issuer, the performance of this Agreement by the Issuer, the Seller and IOS Capital and compliance by the Issuer, the Seller and IOS Capital with the terms of the Transaction Documents, as applicable, and the Final Prospectus consummation of the transactions contemplated herein and therein will not conflict with the organizational documents of the Issuer, the Seller or IOS Capital, or to the best of such counsel's knowledge, any other contract to which the Issuer, the Seller or IOS Capital is a party or by which any of them is bound; (exclusive vii) to the best of any supplement thereto)such counsel's knowledge, there has been is no legal or governmental proceeding threatened or pending against the Issuer, the Seller or IOS Capital which would have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties issuance of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration StatementNotes, the Disclosure Packageperformance by the Issuer, the Final Prospectus and any supplements Seller or amendments theretoIOS Capital of this Agreement or compliance by the Issuer, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date Seller or IOS Capital with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness terms of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.the
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase Securities pursuant to and pay for the Terms Agreement are Notes on the Issuance Date shall be subject to the accuracy in all material respects of the representations and warranties on the part of each of the Company Issuer and IOS Capital herein, in the Guarantor herein contained, to Assignment and Servicing Agreement and in the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofIndenture, to the performance by each the Issuer and IOS Capital in all material respects of the Company and the Guarantor of all of its respective covenants and other their obligations hereunder and to the following further additional conditions:
(a) The Company Issuer and the Guarantor IOS Capital shall each have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
delivered a certificate (b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of youan "Officer's Certificate"), dated respectively as of the Execution Time and as of the Closing Issuance Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Dateits Vice President and its Chief Financial Officer, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of made by the Company Issuer or IOS Capital (as the case may be) in this Agreement, the Indenture and the Assignment and Servicing Agreement are true and correct in all material respects at and as of the date of such Officer's Certificate as if made on and as of such date (except to the Closing Date with extent they expressly relate to an earlier date);
(ii) the same effect Issuer or IOS Capital (as if made on the Closing Date and the Company case may be) has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement, the Indenture and the Assignment and Servicing Agreement at or prior to the Closing Datedate of such Officer's Certificate;
(iii) nothing has come to such officer's attention that would lead him to believe that the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) such officer is not aware of (A) any request of the Commission for further amendment of the Registration Statement or the Final Prospectus for any additional information, (B) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceeding for that purpose or (C) any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the threatening of any proceeding for that purpose.
(b) You shall have received from__________, Esq., a favorable opinion (subject to customary and usual qualifications) with respect to IOS Capital and an opinion from Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, counsel to the Issuer, dated the Issuance Date and reasonably satisfactory in form and substance to the Underwriter and their counsel with respect to, or to the effect that: (i) the due formation and qualification of each of the Issuer and IOS Capital and that the Issuer and IOS Capital, as applicable, have the corporate power and authority to perform this Agreement, the Assignment and Servicing Agreement, the Indenture (the "Transaction Documents") and the transactions contemplated herein and therein; (ii) the due authorization, execution, delivery and enforceability of this Agreement and the other Transaction Documents as applicable, by the Issuer and IOS Capital; (iii) each of this Agreement and the other Transaction Documents are the legal, valid and binding obligation of the Issuer and IOS Capital, as applicable, enforceable against each of them in accordance with its terms (subject to customary exceptions relating to bankruptcy and laws affecting creditors' rights); (iv) the Notes have been duly authorized, executed and delivered by the Issuer and constitute the legal, valid and binding obligations of the Issuer, enforceable in accordance with their terms (subject to customary exceptions as to bankruptcy and laws affecting creditors' rights) and are entitled to the benefits of the Indenture; (v) the issuance and sale of the Notes by the Issuer, the performance of this Agreement by the Issuer and IOS Capital and the compliance by the Issuer and IOS Capital with the terms of the Transaction Documents, as applicable, and the consummation of the transactions contemplated herein and therein will not conflict with the organizational documents of the Issuer or IOS Capital, or to the best of such counsel's knowledge, any other contracts to which the Issuer or IOS Capital is a party or by which either of them is bound; (vi) to the best of such counsel's knowledge, there is no legal or governmental proceeding threatened or pending against the Issuer or IOS Capital which would have a material adverse effect on the issuance of the Notes; (vii) in the event a court disregarded the intent of the parties and characterized the transfers as a pledge of collateral, the Assignment and Servicing Agreement and accompanying documentation creates a valid security interest in the Leases and the Equipment (or interests therein) under Delaware law; (viii) assuming no prior financing statements covering the Leases are in effect based on a review of certain UCC searches, that financing statements covering the Leases and naming (A) the Issuer as secured party and IOS Capital as debtor and (B) the Issuer as debtor and the Trustee as secured party are being filed in the appropriate filing offices of the State of Delaware, and assuming that the Trustee has taken possession of the Leases, the Trustee has a first priority perfected security interest in all right, title and interest of IOS Capital and the Issuer in the Leases; and (ix) on the Issuance Date the Registration Statement is effective, and, that to the best of such counsel's knowledge no stop order suspending the effectiveness of the Registration Statement has been issued or is threatened, and no proceedings for that purpose although such counsel is not passing on the factual accuracy, completeness or under Section 8A fairness of the Act have been instituted orstatements contained in the Registration Statement and the Prospectus, nothing came to such counsel's attention that leads such counsel to believe that either the Company’s knowledge, threatened; and
Registration Statement or the Prospectus (iii) since as of the Effective Date or the date of the most recent financial Prospectus) 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 included therein, in light of the circumstances under which they were made not misleading. In rendering such opinion, counsel may rely, to the extent deemed proper and as stated therein, as to matters of fact on certificates of responsible officers of the Issuer or incorporated by reference IOS Capital and public officials and as to matters of state law of jurisdictions other than the jurisdictions in which such counsel is admitted to practice, on opinions of local counsel satisfactory to the Disclosure Package and Underwriter.
(c) The Underwriter shall have received from Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriter, such opinion or opinions, dated the Issuance Date, with respect to the validity of the Notes, the Registration Statement, the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse effect on true sale, nonconsolidation and other related matters as the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Underwriter may require.
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to At the Execution Time or, if earlier, and at the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Issuance Date, the Company and the Guarantor Xxxxx & Young LLP shall have furnished to the Underwriters such further informationUnderwriter a letter or letters, certificates dated the date of this Agreement and documents as the Underwriters may reasonably requestIssuance Date, respectively, in form and substance satisfactory to the Underwriter.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase Securities pursuant and pay for the Shares and Warrants which it has agreed to the Terms Agreement purchase hereunder, are subject to the accuracy (as of the date hereof, and as of the First Closing Date) of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofherein, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder hereunder, and to the following further conditions:
(a) The Company and the Guarantor Registration Statement shall have requested become effective and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor you shall have requested and caused PricewaterhouseCoopersreceived notice thereof not later than 10:00 a.m., independent auditors for New York time, on the Guarantor, and such other independent auditors as may be specified in day following the Terms date of this Agreement, or at such later time or on such later date as to have furnished to you, at which the Execution Time and at the Closing Date, letters (which Underwriter may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, agree in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct writing; on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the First Closing Date;
(ii) Date no stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings for that or a similar purpose or under Section 8A of the Act shall have been instituted or shall be pending or, to the Company’s knowledgeUnderwriter's knowledge or to the knowledge of the Company shall be contemplated by the Commission; any request on the part of the Commission for additional information shall have been complied with to the satisfaction of the Commission; and no stop order shall be in effect denying or suspending effectiveness of such qualification nor shall any stop order proceedings with respect thereto be instituted or pending or threatened. If required, threatened; andthe Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act.
(iiib) since At the date First Closing Date, you shall have received the opinion, dated as of the most recent financial statements included or incorporated by reference in First Closing Date, of the Disclosure Package and the Final Prospectus (exclusive Law Offices of any supplement thereto)Morse, there has been no material adverse effect on the condition (financial or otherwise)Zelnick, prospectsRose & Lander, earningsLLP, business or properties of counsel for the Company, except as set forth in or contemplated in the Disclosure Package form and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably substance satisfactory to you, dated counsel for the Closing DateUnderwriter, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations Company and warranties each of its Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the Guarantor laws of their respective jurisdictions of incorporation, with all requisite corporate power and authority to own its properties and conduct its business as described in the Agreement are true Registration Statement and correct on Prospectus and is duly qualified or licensed to do business as a foreign corporation and is in good standing in each other jurisdiction in which the ownership or leasing of its properties or conduct of its business requires such qualification except where the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part failure to qualify or be performed or satisfied at or prior to the Closing Datelicensed will not have a Material Adverse Effect;
(ii) the authorized capitalization of the Company as of September 30, 1996 is as set forth under "Capitalization" in the Prospectus; all shares of the Company's outstanding Common Stock requiring authorization for issuance by directors have been duly authorized and upon payment of consideration therefor, will be validly issued, fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; to such counsel's knowledge the outstanding shares of Common Stock of the Company have not been issued in violation of the preemptive rights of any shareholder and the shareholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase, nor are there any restrictions upon the voting or transfer of, any of the Shares except as provided in the Prospectus; the Shares, the Warrants, the Underwriter's Option, and the Warrant Agreement conform in all material respects to the respective descriptions thereof contained in the Prospectus; the Shares and Warrants have been, and the shares of Common Stock to be issued upon exercise of the Warrants and the Underwriter's Option, upon issuance in accordance with the terms of such Warrants, the Warrant Agreement and Underwriter's Option will have been duly authorized and, when issued and delivered in accordance with their respective terms, will be duly and validly issued, fully paid, non-assessable, free of preemptive rights and no personal liability will attach to the ownership thereof; to the best of our knowledge all prior sales by the Company of the Company's securities have been made in compliance with or under an exemption from registration under the Act and applicable state securities laws; a sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Warrants and Underwriter's Option and to the best of such counsel's knowledge, neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any registration rights other than those which have been waived or satisfied for or relating to the registration of any shares of Common Stock or as otherwise being exercised in connection with the concurrent offering;
(iii) this Agreement, the Underwriter's Option, and the Warrant Agreement have been duly and validly authorized, executed, and delivered by the Company;
(iv) the certificates evidencing the shares of Common Stock comply with the Delaware General Corporation Law; the Warrants will be exercisable for shares of Common Stock in accordance with the terms of the Warrants and at the prices therein provided for;
(v) except as otherwise disclosed in the Registration Statement, such counsel knows of no pending or threatened legal or governmental proceedings to which the Company or any Subsidiary is a party which would materially adversely affect the business, property, financial condition, or operations of the Company or any Subsidiary; or which question the validity of the Securities, this Agreement, the Warrant Agreement, or the Underwriter's Option, or of any action taken or to be taken by the Company pursuant to this Agreement, the Warrant Agreement, or the Underwriter's Option; to such counsel's knowledge there are no governmental proceedings or regulations required to be described or referred to in the Registration Statement which are not so described or referred to;
(vi) the execution and delivery of this Agreement, the Underwriter's Option, or the Warrant Agreement and the incurrence of the obligations herein and therein set forth and the consummation of the transactions herein or therein contemplated, will not result in a breach or violation of, or constitute a default under the certificate or articles of incorporation or by-laws of the Company or any Subsidiary, or to the best knowledge of counsel after due inquiry, in the performance or observance of any material obligations, agreement, covenant, or condition contained in any bond, debenture, note, or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture, or other agreement or instrument to which the Company or any Subsidiary is a party or by which it or any of its properties is bound or in violation of any order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality, or court, domestic or foreign, the result of which would have a Material Adverse Effect;
(vii) the Registration Statement has become effective under the Act, and to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued is in effect, and no proceedings for that purpose have been instituted or under Section 8A are pending before, or threatened by, the Commission; the Registration Statement and the Prospectus (except for the financial statements and other financial data contained therein, or omitted therefrom, as to which such counsel need express no opinion) as of the Effective Date comply as to form in all material respects with the applicable requirements of the Act have been instituted or, to and the Guarantor’s knowledge, threatenedRules and Regulations;
(iiiviii) since in the date course of preparation of the most recent financial Registration Statement and the Prospectus such counsel has participated in conferences with the President and Chief Executive Officer of the Company with respect to the Registration Statement and Prospectus and such discussions did not disclose to such counsel any information which gives such counsel reason to believe that the Registration Statement or any amendment thereto at the time it became effective contained any untrue statement of a material fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary to make the statements included therein not misleading or incorporated by reference that the Prospectus or any supplement thereto contains any untrue statement of a material fact or omits to state a material fact necessary in order to make statements therein, in light of the circumstances under which they were made, not misleading (except, in the Disclosure Package case of both the Registration Statement and any amendment thereto and the Final Prospectus (exclusive of and any supplement thereto, for the financial statements, notes thereto, and other financial information (including without limitation, the pro forma financial information) and schedules contained therein, as to which such counsel need express no opinion);
(ix) all descriptions in the Registration Statement and the Prospectus, there has been and any amendment or supplement thereto, of contracts and other agreements to which the Company or any Subsidiary is a party are accurate and fairly present in all material respects the information required to be shown, and such counsel is familiar with all contracts and other agreements referred to in the Registration Statement and the Prospectus and any such amendment or supplement or filed as exhibits to the Registration Statement, and such counsel does not know of any contracts or agreements to which the Company or any Subsidiary is a party of a character required to be summarized or described therein or to be filed as exhibits thereto which are not so summarized, described, or filed;
(x) no material adverse effect on authorization, approval, consent, or license of any governmental or regulatory authority or agency is necessary in connection with the condition (financial authorization, issuance, transfer, sale, or otherwise), prospects, earnings, business or properties delivery of the Guarantor Shares or the Warrants by the Company, in connection with the execution, delivery, and its subsidiaries, taken as a whole, except as set forth performance of this Agreement by the Company or in or contemplated in connection with the Disclosure Package and the Final Prospectus (exclusive taking of any supplement thereto)action contemplated herein, or the issuance of the Underwriter's Option or the Securities underlying the Underwriter's Option, other than registrations or qualifications of the Shares or Warrants under applicable state or foreign securities or Blue Sky laws and registration under the Act; and
(ivxi) since the Execution TimeShares and Warrants have been duly authorized for quotation on the National Association of Securities Dealers Automated Quotation System ("NASDAQ"). Such opinions shall also cover such matters incident to the transactions contemplated hereby as the Underwriter or counsel for the Underwriter shall reasonably request. In rendering such opinion, there has not been any decrease in the rating such counsel may rely upon certificates of any officer of the debt securities issued by Company or guaranteed by public officials as to matters of fact; and may rely as to all matters of law other than the Company by any “nationally recognized statistical rating organization” laws of the United States or of the States of Delaware and New York upon opinions of counsel satisfactory to the Underwriter, in which case the opinion shall state that they have no reason to believe that the Underwriter and they are not entitled to so rely. Such opinions shall be governed by, and shall be interpreted in accordance with, the Legal Opinion Accord (the "Accord") of the ABA Section of Business Law (1991) and shall be subject to the qualifications,exceptions, definitions, limitations on coverage and other limitations set forth therein and in such opinions. Qualifications in such opinions as to knowledge or the absence of knowledge shall be based upon and limited to the "Actual Knowledge" (as defined for purposes of Rule 436(gin the Accord) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” "Primary Lawyer Group" (as defined for purposes in such opinions). In rendering such opinions, such legal counsel shall be entitled to rely upon Public Authority Documents and upon information provided by client officials in written Certificates provided that copies of Rule 436(g) under the 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.
(g) Prior Public Authority Documents and Certificates are attached as exhibits to the Closing Date, the Company and the Guarantor written opinion of legal counsel. The term "Public Authority Documents" shall have furnished the meaning ascribed to it in the Underwriters such further information, certificates and documents as the Underwriters may reasonably requestAccord.
Appears in 1 contract
Samples: Underwriting Agreement (Pc411 Inc)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase Securities pursuant to and pay for the Terms Agreement Shares are subject to the accuracy as of the date hereof, and as of each Closing Date to the continuing accuracy of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofherein, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder hereunder, and to the following further conditions:
(ai) The Company Registration Statement shall have become and remain effective under the Act and the Guarantor Underwriter shall have requested received notice thereof not later than 10:00 a.m. New York time, on the day following the date of this Agreement, or at such later time and caused on such date as to which Underwriter may agree in writing; (ii) on or prior to each Closing Date no stop order suspending the delivery effectiveness of written opinionsthe Registration Statement under the Act and any applicable state securities law shall have been issued and no proceedings for that or a similar purpose shall have been instituted or shall be pending or shall be threatened, substantially in or to the forms knowledge of the Company, contemplated by the Terms AgreementCommission or any state securities commission; (iii) no stop order suspending the effectiveness of the qualification or registration of the Shares under the securities or "blue sky" laws of any jurisdiction (whether or not a jurisdiction which you shall have specified) shall be threatened or to the knowledge of the Company contemplated by the authorities of any such jurisdiction or shall have been issued and remain in effect; (iv) any request for additional information on the part of the Commission or any such authorities shall have been complied with to the satisfaction of the Commission, such authorities and the Underwriter; and (v) after the date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriter and the Underwriter did not object thereto. If required, the Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act.
(b) The Guarantor You shall have requested and caused PricewaterhouseCoopersreceived the opinion, independent auditors for the Guarantor, and such other independent auditors dated as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the of each Closing Date, letters (which may refer to letters previously delivered to one or more of you)Xxxxx Xxxxxxx Xxxxxx & Xxxxxx LLP, dated respectively as of counsel for the Execution Time and as of the Closing DateCompany, in form and substance satisfactory to youthe Underwriter, confirming to the effect specified in Exhibit C attached hereto. The foregoing opinion shall also cover such matters incident to the transactions contemplated hereby as the Underwriter shall reasonably request. In rendering such opinion, such counsel may rely upon certificates of any officer of the Company or public officials as to matters of fact. Such counsel shall also include, or render separately, a statement to the effect that such counsel has participated in the preparation of the Registration Statement and the Prospectus and nothing has come to the attention of such counsel to lead such counsel to believe that the Registration Statement or any amendment thereto at the time it became effective under the Act and on each Closing Date contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus or any amendment or supplement thereto, as of its date on each Closing Date, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading in light of the circumstances under which they were made (except, in the case of both the Registration Statement and any amendment thereto and the Prospectus and any supplement thereto, for the financial statements, notes thereto and other financial information and statistical data contained therein, as to which such counsel need express no opinion).
(c) All corporate proceedings and other legal matters relating directly or indirectly to this Agreement, the Registration Statement, the Prospectus and other related matters shall be reasonably satisfactory to the Underwriter.
(d) You shall have received a letter prior to the Effective Date and again on and as of each Closing Date from Xxxxxxxx Xxxxx Xxxxxxx & Xxxxxxx PC, independent public accountants for the Company, substantially in the form and substance satisfactory to the Underwriter, stating that:
(i) they are an independent registered public accounting firm accountants with respect to the Company within the meaning of the Act and the Exchange Act applicable rules and covering regulations;
(ii) the matters that are ordinarily covered financial statements and the schedules included in the Registration Statement and the Prospectus were examined by “comfort letters” drafted them and, in their opinion, comply as to form in all material respect with the applicable accounting requirements of the Act, the Rules and Regulations and instructions of the Commission with respect to Registration Statements on Form S-1;
(iii) on the basis of inquiries and procedures conducted by them (not constituting an examination in accordance with generally accepted auditing standards), including a reading of the latest available unaudited interim financial statements or other financial information of the Company (with an indication of the date of the latest available unaudited interim financial statements), inquiries of officers of the Company who have responsibility for financial and accounting matters, review of minutes of all meetings of the shareholders and the Board of Directors of the Company and other specified inquiries and procedures, nothing has come to their attention as a result of the foregoing inquiries and procedures that causes them to believe that:
(A) during the period from (and including) the date of the financial statements in the Registration Statement and the Prospectus to a specified date not more than five days prior to the date of Accounting Standards Nosuch letters, there has been any change in the capital stock, long-term debt or other securities of the Company (except as specifically contemplated in the Registration Statement and Prospectus) or any material decreases in net current assets, net assets, shareholder’s equity, working capital or in any other item appearing in the Company’s financial statements as to which the Underwriter may request advice, in each case as compared with amounts shown in the balance sheet as of the date of the financial statement in the Prospectus, except in each case for changes, increases or decreases that the Prospectus discloses have occurred or will occur;
(B) during the period from (and including) the date of the financial statements in the Registration Statement and the Prospectus to such specified date there was any material decrease in revenues or in the total or per share amounts of income or loss before extraordinary items or net income or loss, or any other material change in such other items appearing in the Company’s financial statements as to which the Underwriter may request advice, in each case as compared with the fiscal period ended as of the date of the financial statement in the Prospectus, except in each case for increases, changes or decreases that the Prospectus discloses have occurred or will occur;
(C) the unaudited interim financial statements of the Company appearing in the Registration Statement and the Prospectus (if any) comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations and are fairly presented in conformity with generally accepted accounting principles and practices on a basis substantially consistent with the audited financial statements included in the Registration Statements or the Prospectus; and
(iv) they have compared specific dollar amounts, numbers of shares, percentages of revenues and earnings, statements and other financial information pertaining to the Company set forth in the Prospectus in each case to the extent that such amounts, numbers, percentages, statements and information may be derived from the general accounting records, including work sheets, of the Company and excluding any questions requiring an interpretation by legal counsel, with the results obtained from the application of specified readings, inquiries and other appropriate procedures (which procedures do not constitute an examination in accordance with generally accepted auditing standards) set forth in the letter and found them to be in agreement. 72Such letters shall also set forth such other information as may be reasonably requested by counsel for the Underwriter. Any changes, increases or decreases in the items set forth in such letters which, in the judgment of the Underwriter, are materially adverse with respect to the financial position or results of operations of the Company shall be deemed to constitute a failure of the Company to comply with the conditions of the obligations to the Underwriter hereunder.
(ce) The Company You shall have furnished to you a certificatereceived an opinion from Xxxxxxxxxx Hyatt & Xxxxxx, signed by two directors of the Company with specific knowledge of the financial matters of the CompanyP.C., reasonably satisfactory to you, dated the Closing Dateyour counsel, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:specified in Exhibit D attached hereto.
(f) (i) the representations and warranties of the Company contained in the this Agreement are shall be true and correct on and as of the Closing Date in all material respects with the same effect as if made on and as of the Closing Date Dates, taking into account for the Over-Allotment Option Closing Date(s) the effect of the transactions contemplated hereby, and the Company has complied with shall have performed all the agreements of its obligations hereunder and satisfied all of the conditions on its part to be performed or satisfied at or prior to the such Closing Date;
; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose the Prospectus and any amendments or under Section 8A supplements thereto shall contain all statements which are required to be stated therein in accordance with the Act and the Rules and Regulations, and shall in all material respects conform to the requirements thereof, and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading (in light of the Act circumstances under which they were made in the case of the Prospectus); (iii) there shall have been instituted orbeen, since the respective dates as of which information is given, no material adverse change, or to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference any development involving a prospective material adverse change, in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)business, there has been no material adverse effect on the properties, condition (financial or otherwise), prospectsresults of operations, earningscapital stock, business long-term or properties short-term debt or general affairs of the CompanyCompany from that set forth in the Registration Statement and the Prospectus, except changes which the Registration Statement and Prospectus indicate might occur after the Effective Date and the Company shall not have incurred any material liabilities or entered into any material agreement not in the ordinary course of business other than as referred to in the Registration Statement and Prospectus; (iv) except as set forth in the Prospectus, no action, suit or contemplated proceeding at law or in equity shall be pending or threatened against the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished Company which would be required to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined be set forth in the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose shall be pending or under Section 8A of threatened against the Act have been instituted orCompany before or by any commission, to board or administrative agency, wherein an unfavorable decision, ruling or finding would materially and adversely affect the Guarantor’s knowledgebusiness, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)property, there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business results of operations or properties general affairs of the Guarantor Company; and its subsidiaries(v) you shall have received, taken as at such Closing Date, a whole, except as set forth in or contemplated in certificate signed by each of the Disclosure Package chief executive officer and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any principal financial officer of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time orCompany, if earlier, the dates dated as of which information is given in the Registration Statement (exclusive of any amendment thereof)such Closing Date, the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed evidencing compliance with the offering or delivery provisions of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
this subsection (f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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).
(g) No action shall have been taken by the Commission or the NASD, the effect of which would make it improper, at any time prior to a Closing Date, for members of the NASD to execute transactions in the Shares and no proceedings for the taking of such action shall have been instituted or shall be pending, or, to the knowledge of the Underwriter or the Company, shall be contemplated by the Commission or the NASD. The Company and the Underwriter represent that at the date hereof each has no knowledge that any such action is in fact contemplated against it by the Commission or the NASD. The Company shall advise the Underwriter of any NASD affiliation of any of its officers, directors, or shareholders or their affiliates.
(h) Prior to the Effective Date, the Underwriter shall have received clearance from the NASD as to the amount of compensation allowable or payable to the Underwriter, as described in the Registration Statement.
(i) If any of the conditions herein provided for in this section shall not have been fulfilled in all material respects as of the date indicated, this Agreement and all obligations of the Underwriter under this Agreement may be canceled at, or at any time prior to, each Closing Date by the Underwriter notifying the Company of such cancellation in writing at or prior to the applicable Closing Date, . Any such cancellation shall be without liability of the Underwriter to the Company.
(j) The Underwriter shall have received such other documents and items as it or its counsel has reasonably requested and are satisfied with all other items relating directly and/or indirectly to the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably requestOffering.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters Underwriter to purchase Securities and pay for the [Notes][and][Warrants] pursuant to the Terms this Agreement are subject to the accuracy of the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) The Company and On the Guarantor Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have requested been issued under the Securities Act and caused the delivery of written opinions, substantially in the forms contemplated no proceedings therefor shall have been instituted or threatened by the Terms AgreementCommission.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at On the Closing Date, letters (which may refer to letters previously delivered to one or more you shall have received an opinion of you)Xxxxxxx Xxxxxxx & Xxxxxxxx, as counsel for the Company [and NWA Corp.], dated respectively as of the Execution Time and as of the Closing Date, Date and in form and substance reasonably satisfactory to youyou and counsel for the Underwriter, confirming that they are an independent registered public accounting firm within substantially to the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted effect set forth in accordance with Statement of Accounting Standards No. 72Exhibit A hereto.
(c) The Company On the Closing Date, you shall have furnished to you a certificate, signed by two directors received an opinion of the General Counsel of the Company with specific knowledge of [and NWA Corp.], dated the financial matters of the Company, Closing Date and in form and substance reasonably satisfactory to youyou and counsel for the Underwriter, substantially to the effect set forth in Exhibit B hereto.
(d) On the Closing Date, you shall have received an opinion of ___________, as counsel for the Underwriter, dated the Closing Date, with respect to the effect that issuance and sale of the signers of such certificate have carefully examined [Notes][Securities][Warrants] [and the related Guarantees], the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments theretoother related matters as the Underwriter may reasonably require.
(e) On the Closing Date, and the Terms Agreement and that:
(i) (A) the representations and warranties Registration Statement, as it may then be amended or supplemented, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (B) the Prospectus, as it may then be amended or supplemented, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the Company in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and circumstances under which they were made, (C) the Company has [and NWA Corp.] shall have complied with all the agreements and satisfied all the conditions on its part [their respective][its] part[s] to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(iD) the other representations and warranties of the Guarantor Company and NWA Corp. set forth in the Agreement are true and correct on Section 1(a) shall be accurate in all material respects as though expressly made at and as of the Closing Date (except to the extent that such representations and warranties refer to an earlier or later date, in which case they shall be accurate in all material respects as of such dates) and (ii) subsequent to the execution and delivery of this Agreement, there shall not have been any material adverse change in the condition (financial or other), earnings, business or prospects of NWA Corp. and its consolidated subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, that in your judgment, is so material and adverse that it makes it impracticable or inadvisable to proceed with the same effect as if made on public offering or sale of and payment for the [Notes][or][Warrants]. At the Closing Date Date, you shall have received a certificate of the President or a Senior or Executive Vice President, and other senior officers of the Company [and NWA Corp.] approved by you, dated as of the Closing Date, to such effect.
(f) On each of the date hereof and the Guarantor has complied Closing Date, you shall have received a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to you and counsel to the Underwriter, from Ernst & Young LLP, the Company's [and NWA Corp.=s] independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with all respect to the agreements financial statements and satisfied all certain other financial or statistical data and certain financial information contained in or incorporated by reference into the conditions on its part Registration Statement and the Prospectus.
(g) Subsequent to be performed or satisfied at or the execution and delivery of this Agreement and prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act , there shall not have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or downgrading nor any notice given to the Company [or NWA Corp.] or any public notice given, in either case by a rating agency described below, of any intended or potential decrease in any such rating downgrading or of a possible change in any such rating that does not indicate the direction of the possible change.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of accorded any of the debt securities issued by Company's or guaranteed by either NWA Corp.'s securities, including the Company or [Notes][Securities][Warrants][and the Guarantor related Guarantees], by any “"nationally recognized statistical rating organization” (", as such term is defined for purposes of Rule 436(g436(g)(2) under the Securities 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.
(gh) Prior to the Closing Date, the The Company [and the Guarantor NWA Corp.] shall have furnished to you and to counsel for the Underwriters Underwriter, in form and substance satisfactory to you and to them, such further informationother documents, certificates and documents opinions as the Underwriters such counsel may reasonably requestrequest in order to pass upon the matters referred to in Section 4(d) and in order to evidence the accuracy and completeness of any of the representations, warranties or statements, the performance of any covenant by the Company [or NWA Corp.] theretofore to be performed, or the compliance with any of the conditions herein contained. If any of the conditions specified in this Section 4 shall not have been fulfilled when and as required by this Agreement to be fulfilled, this Agreement may be terminated by you on notice to the Company and NWA Corp. at any time prior to the Closing Date and such termination shall be without liability of any party to any other party, except as provided in Section 6. Notwithstanding any such termination, the provisions of Section 7 shall remain in effect.
Appears in 1 contract
Samples: Underwriting Agreement (Northwest Airlines Inc /Mn)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase Securities pursuant and pay for the Units which it has agreed to the Terms Agreement purchase hereunder, are subject to the accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofherein, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder hereunder, and to the following further conditions:
(a) The Company and the Guarantor Registration Statement shall have requested become effective and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor you shall have requested and caused PricewaterhouseCoopersreceived notice thereof not later than 10:00 A.M., independent auditors for New York time, on the Guarantor, and such other independent auditors as may be specified in day following the Terms date of this Agreement, or at such later time or on such later date as to have furnished to you, at the Execution Time and at the Closing Date, letters (which you may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, agree in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct writing; on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) Dates no stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings for that or a similar purpose or under Section 8A of the Act shall have been instituted or shall be pending or, to your knowledge or to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties knowledge of the Company, except as set forth shall be contemplated by the Commission; any request on the part of the Commission for additional information shall have been complied with to the satisfaction of the Commission; and no stop order shall be in effect denying or contemplated suspending effectiveness of such qualification nor shall any stop order proceedings with respect thereto be instituted or pending or threatened. If required, the Prospectus shall have been filed with the Commission in the Disclosure Package manner and within the Final Prospectus (exclusive of any supplement thereto)time period required by Rule 424(b) under the Act.
(db) The Guarantor At the First Closing Date, you shall have furnished to you a certificatereceived the opinion, signed by two executive officers dated as of the Guarantor with specific knowledge First Closing Date, of Singer Xxxxxxxx LLP, counsel for the financial matters of the GuarantorCompany, reasonably in form and substance satisfactory to you, dated counsel for the Closing DateUnderwriter, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations Company and warranties its Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the Guarantor their respective jurisdictions of organization, with all requisite corporate power and authority to own their properties and conduct their business as described in the Agreement Registration Statement and Prospectus and are true duly qualified or licensed to do business as foreign corporations and correct on and as are in good standing in each other jurisdiction in which the ownership or leasing of their properties or conduct of their business requires such qualification except where the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part failure to qualify or be performed or satisfied at or prior to the Closing Datelicensed will not have a Material Adverse Effect;
(ii) the authorized capitalization of the Company as of , 1997 is as set forth in the Registration Statement; the Securities as set forth in the Registration Statement have been duly authorized and upon payment of consideration therefor, will be validly issued, fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; to such counsel's knowledge the outstanding shares of capital stock of the Company and its Subsidiaries have not been issued in violation of the preemptive rights of any shareholder and to such counsel's knowledge the shareholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase, nor are there any restrictions upon the voting or transfer of any of the capital stock except as provided in the Prospectus or as required by law. The Securities, the Purchase Option and the Warrant Agreement conform in all material respects to the respective descriptions thereof contained in the Prospectus; the shares of Common Stock, and the shares of Common Stock issuable upon exercise of Warrants, the Purchase Option, and the Warrant Agreement will have been duly authorized and, when issued and delivered in accordance with their respective terms, will be duly and validly issued, fully paid, non-assessable, free of preemptive rights to the best of their knowledge; to the best of their knowledge, all prior sales by the Company of the Company's securities, have been made in compliance with or under an exemption from registration under the Act and applicable state securities laws; a sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Warrants and Common Stock has been reserved for issuance upon exercise of the Warrants contained in the Purchase Option and to the best of such counsel's knowledge, neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any registration rights other than those which have been waived or satisfied for or relating to the registration of any shares of Common Stock;
(iii) this Agreement, the Purchase Option, and the Warrant Agreement have been duly and validly authorized, executed and delivered by the Company;
(iv) the certificates evidencing the Securities as described in the Registration Statement comply in all material respects with the descriptions set forth therein, and comply with the Delaware General Corporation Law, as in effect on the date hereof; each Warrant will be exercisable for one share of the Common Stock of the Company, respectively, and at the prices provided for in the Warrant Agreement;
(v) except as otherwise disclosed in the Registration Statement, such counsel knows of no pending or threatened legal or governmental proceedings to which the Company or its Subsidiaries are a party which would materially adversely affect the business, property, financial condition or operations of the Company or its Subsidiaries; or which question the validity of the Securities, this Agreement, the Warrant Agreement or the Purchase Option, or of any action taken or to be taken by the Company pursuant to this Agreement, the Warrant Agreement or the Purchase Option; to such counsel's knowledge there are no governmental proceedings or regulations required to be described or referred to in the Registration Statement which are not so described or referred to;
(vi) the execution and delivery of this Agreement, the Purchase Option or the Warrant Agreement and the incurrence of the obligations herein and therein set forth and the consummation of the transactions herein or therein contemplated, will not result in a breach or violation of, or constitute a default under the certificate of incorporation or by-laws of the Company or its Subsidiaries, or to the best knowledge of counsel after due inquiry, in the performance or observance of any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to which the Company or its Subsidiaries is a party or by which they or any of their properties is bound or in violation of any order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign the result of which would have a Material Adverse Effect;
(vii) the Registration Statement has become effective under the Act, and to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued is in effect, and no proceedings for that purpose have been instituted or under Section 8A are pending before, or threatened by, the Commission; the Registration Statement and the Prospectus (except for the financial statements and other financial data contained therein, or omitted therefrom, as to which such counsel need express no opinion) as of the Effective Date comply as to form in all material respects with the applicable requirements of the Act have been instituted or, to and the Guarantor’s knowledge, threatenedRules and Regulations;
(iiiviii) since in the date course of preparation of the most recent financial Registration Statement and the Prospectus such counsel has participated in conferences with the President of the Company with respect to the Registration Statement and Prospectus and such discussions did not disclose to such counsel any information which gives such counsel reason to believe that the Registration Statement or any amendment thereto at the time it became effective contained any untrue statement of a material fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary to make the statements included therein not misleading or incorporated by reference that the Prospectus or any supplement thereto contains any untrue statement of a material fact or omits to state a material fact necessary in order to make statements therein, in light of the circumstances under which they were made, not misleading (except, in the Disclosure Package case of both the Registration Statement and any amendment thereto and the Final Prospectus (exclusive of and any supplement thereto, for the financial statements, notes thereto and other financial information (including without limitation, the pro forma financial information) and schedules contained therein, as to which such counsel need express no opinion), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and;
(ivix) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given all descriptions in the Registration Statement (exclusive and the Prospectus, and any amendment or supplement thereto, of contracts and other agreements to which the Company or its Subsidiaries is a party are accurate and fairly present in all material respects the information required to be shown, and such counsel is familiar with all contracts and other agreements referred to in the Registration Statement and the Prospectus and any such amendment or supplement or filed as exhibits to the Registration Statement, and such counsel does not know of any amendment thereof)contracts or agreements to which the Company or its Subsidiaries is a party of a character required to be summarized or described therein or to be filed as exhibits thereto which are not so summarized, the Disclosure Package described or filed;
(exclusive x) no authorization, approval, consent, or license of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, governmental or any development involving a prospective change, regulatory authority or agency is necessary in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed connection with the offering authorization, issuance, transfer, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive Company, in connection with the execution, delivery and performance of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued this Agreement by or guaranteed by either the Company or in connection with the Guarantor by taking of any “nationally recognized statistical rating organization” (as defined for purposes action contemplated herein, or the issuance of Rule 436(g) the Purchase Option or the Securities underlying the Purchase Option, other than registrations or qualifications of the Securities under applicable state or foreign securities or Blue Sky laws and registration under the Act; and
(xi) the Units, shares of Common Stock and the Warrants have been duly authorized for quotation on the Nasdaq SmallCap System ('Nasdaq'). Such opinion shall also cover such matters incident to the transactions contemplated hereby as the Underwriter or any notice given counsel for the Underwriter shall reasonably request. In rendering such opinion, such counsel may rely upon certificates of any intended officer of the Company or potential decrease in any such rating public officials as to matters of fact; and may rely as to all matters of law other than the law of the United States or of a possible change the State of New York or Delaware upon opinions of counsel satisfactory to you, in any such rating which case the opinion shall state that does they have no reason to believe that you and they are not indicate the direction of the possible changeentitled to so rely.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (All Communications Corp/Nj)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters to purchase Securities pursuant to the Terms Agreement Underwriter are subject to the accuracy (as of the date hereof, and as of the Closing Date) of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofherein, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder hereunder, and to the following further conditions:
(a) The Company and the Guarantor Registration Statement shall have requested become effective and caused you shall have received notice thereof not later than 10:00 a.m., New York time, on the delivery day following the date of written opinionsthis Agreement, substantially or at such later time or on such later date as to which the Underwriter may agree in writing; on or prior to the forms Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that or a similar purpose shall have been instituted or shall be pending or, to the Underwriter's knowledge or to the knowledge of the Company, shall be contemplated by the Terms AgreementCommission; any request on the part of the Commission for additional information shall have been complied with to the satisfaction of the Commission; and no stop order shall be in effect denying or suspending effectiveness of such qualification nor shall any stop order proceedings with respect thereto be instituted or pending or threatened. If required, the Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at At the Closing Date, letters (which may refer to letters previously delivered to one or more of you)you shall have received the opinion, dated respectively as of the Execution Time and as of the Closing Date, of the Law Offices of Xxxxx X. Xxxxxxx, Esq., counsel for the Company, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within counsel for the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing DateUnderwriter, to the effect that that:
(a) The Company has no subsidiaries, other than as set forth on the signers Registration Statement. The Company owns 100% of the issued and outstanding capital stock of each subsidiary free and clear of any lien, encumbrance or claim.
(b) Each of the Company and its subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of their respective jurisdictions of incorporation, with all requisite corporate power and authority to own their properties and conduct their business as described in the Registration Statement and Prospectus and is duly qualified or licensed to do business as a foreign corporation and is in good standing in each other jurisdiction in which the ownership or leasing of their properties or conduct of their business requires such qualification except where the failure to qualify or be licensed will not have a material adverse effect;
(ii) the authorized capitalization of the Company as of the date set forth in the Prospectus as set forth under "Capitalization" in the Prospectus; all shares of the Company's outstanding Common Stock requiring authorization for issuance by directors have been duly authorized and upon payment of consideration therefor, will be validly issued, fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; to such counsel's knowledge the outstanding shares of Common Stock of the Company have not been issued in violation of the preemptive rights of any shareholder and the shareholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase, nor are there any restrictions upon the voting or transfer of any of the Stock except as provided in the Prospectus; the Common Stock, the Warrants, the Unit Purchase Option, and the Warrant Agreement conform in all material respects to the respective descriptions thereof contained in the Prospectus; the Shares have been, and the shares of Common Stock to be issued upon exercise of the Warrants and the Unit Purchase Option, upon issuance in accordance with the terms of such certificate Warrants, the Warrant Agreement and Unit Purchase Option will have carefully examined been duly authorized and, when issued and delivered in accordance with their respective terms, will be duly and validly issued, fully paid, non-assessable, free of preemptive rights and no personal liability will attach to the ownership thereof; all prior sales by the Company of the Company's securities have been made in compliance with or under an exemption from registration under the Act and applicable state securities laws; a sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Warrants and Unit Purchase Option and to the best of such counsel's knowledge, neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any registration rights;
(iii) this Agreement, the Unit Purchase Option, and the Warrant Agreement have been duly and validly authorized, executed, and delivered by the Company;
(iv) the certificates evidencing the shares of Common Stock comply with the Delaware General Corporation Law; the Warrants will be exercisable for shares of Common Stock in accordance with the terms of the Warrants and at the prices therein provided for;
(v) except as otherwise disclosed in the Registration Statement, such counsel knows of no pending or threatened legal or governmental proceedings to which the Disclosure PackageCompany is a party which would materially adversely affect the business, the Final Prospectus and any supplements property, financial condition, or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties operations of the Company or any of its subsidiaries; or which question the validity of the Securities, this Agreement, the Warrant Agreement, or the Unit Purchase Option, or of any action taken or to be taken by the Company pursuant to this Agreement, the Warrant Agreement, or the Unit Purchase Option; to such counsel's knowledge there are no governmental proceedings or regulations required to be described or referred to in the Agreement Registration Statement which are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed not so described or satisfied at or prior to the Closing Datereferred to;
(iivi) the execution and delivery of this Agreement, the Unit Purchase Option, or the Warrant Agreement and the incurrence of the obligations herein and therein set forth and the consummation of the transactions herein or therein contemplated, will not result in a breach or violation of, or constitute a default under the certificate or articles of incorporation or by-laws of the Company or its subsidiaries, or to the best knowledge of counsel in the performance or observance of any material obligations, agreement, covenant, or condition contained in any bond, debenture, note, or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture, or other agreement or instrument to which the Company or its subsidiaries is a party or by which they or any of their properties is bound or in violation of any order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality, or court, domestic or foreign, the result of which would have a Material Adverse Effect;
(vii) the Registration Statement has become effective under the Act, and to the best of such counsel's knowledge, (a) no stop order suspending the effectiveness of the Registration Statement has been issued is in effect, and (b) no proceedings for that purpose have been instituted or under Section 8A are pending before, or threatened by, the Commission; the Registration Statement and the Prospectus (except for the financial statements and other financial data contained therein, or omitted therefrom, as to which such counsel need express no opinion) as of the Effective Date comply as to form in all material respects with the applicable requirements of the Act have been instituted orand the Rules and Regulations;
(viii) at the time the Registration Statement was filed and at the time it initially became effective, such Registration Statement and the Prospectus (other than the financial statements included therein, as to which no opinion is rendered) complied as to form in all material respects with the requirements of the Act and the Regulations and nothing came to such counsel's attention which would lead such counsel to believe that either the Registration Statement or the Prospectus, at the time they initially became effective, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(ix) all descriptions in the Registration Statement and the Prospectus, and any amendment or supplement thereto, of contracts, licenses, and other agreements to which the Company is a party are accurate and fairly present in all material respects the information required to be shown, and such counsel is familiar with all contracts, licenses and other agreements referred to in the Registration Statement and the Prospectus and any such amendment or supplement or filed as exhibits to the Company’s knowledgeRegistration Statement, threatenedand such counsel does not know of any contracts, licenses or agreements to which the Company is a party of a character required to be summarized or described therein or to be filed as exhibits thereto which are not so summarized, described or filed; and
(iiix) since no authorization, approval, consent, or license of any governmental or regulatory authority or agency is necessary in connection with the date authorization, issuance, transfer, sale, or delivery of the most recent financial statements included or incorporated Units by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in connection with the execution, delivery, and performance of this Agreement by the Company or contemplated in connection with the Disclosure Package and the Final Prospectus (exclusive taking of any supplement thereto)action contemplated herein, or the issuance of the Unit Purchase Option or the Securities underlying the Unit Purchase Option, other than registrations or qualifications of the Units under applicable state or foreign securities or Blue Sky laws and registration under the Act. Such opinion shall also cover such matters incident to the transactions contemplated hereby as the Underwriter or counsel for the Underwriter shall reasonably request. In rendering such opinion, such counsel may rely upon certificates of any officer of the Company or public officials as to matters of fact; and may rely as to all matters of law other than the law of the United States or of the States of Delaware upon opinions of counsel satisfactory to the Underwriter, in which case the opinion shall state that they have no reason to believe that the Underwriter and they are not entitled to so rely.
(c) All corporate proceedings and other legal matters relating to this Agreement, the Registration Statement, the Prospectus and other related matters shall be satisfactory to or approved by Xxxxxxx, Israels & Xxxxxxxx LLP, counsel to the Underwriter.
(d) The Guarantor Underwriter shall have furnished received a letter prior to you a certificate, signed by two executive officers the effective date of the Guarantor with specific knowledge Registration Statement and again on and as of each Closing Date from Xxxxx Xxxxxxx Xxxxx & Associates, P.A., independent public accountants for the financial matters of Company, substantially in the Guarantor, form reasonably satisfactory acceptable to you, dated the Underwriter.
(e) At each Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor Company contained in the this Agreement are shall be true and correct on and as of the Closing Date in all material respects with the same effect as if made on and as of the Closing Date and the Guarantor has complied with Company shall have performed all the agreements of its obligations hereunder and satisfied all the conditions on its part to be performed or satisfied at or prior to the such Closing Date;
; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose the Prospectus and any amendments or under Section 8A of supplements thereto shall contain all statements which are required to be stated therein in accordance with the Act have been instituted orand the Rules and Regulations, and shall in all material respects conform to the Guarantor’s knowledgerequirements thereof, threatened;
and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) there shall have been, since the date respective dates as of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)which information is given, there has been no material adverse effect on change, or to the Company's knowledge, any development involving a prospective material adverse change, in the business, properties, condition (financial or otherwise), prospectsresults of operations, earningscapital stock, business long-term or properties short-term debt, or general affairs of the Guarantor Company and its subsidiariessubsidiaries from that set forth in the Registration Statement and the Prospectus, taken except changes which the Registration Statement and Prospectus indicate might occur after the effective date of the Registration Statement, and the Company and its subsidiaries shall not have incurred any material liabilities or entered into any material agreement not in the ordinary course of business other than as a whole, referred to in the Registration Statement and Prospectus; (iv) except as set forth in the Prospectus, no action, suit, or contemplated proceeding at law or in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by equity shall be pending or guaranteed by threatened against the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent its subsidiaries which would be required to the Execution Time or, if earlier, the dates as of which information is given be set forth in the Registration Statement (exclusive of Statement, and no proceedings shall be pending or threatened against the Company or its subsidiaries before or by any amendment thereof)commission, the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any changeboard, or any development involving a prospective changeadministrative agency in the United States or elsewhere, in wherein an unfavorable decision, ruling, or affecting finding would materially and adversely affect the business, property, condition (financial or otherwise), earningsresults of operations, business or properties general affairs of the Guarantor and Company or its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement theretov) the effect of which isUnderwriter shall have received, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to at the Closing Date, a certificate signed by each of the Company President and the Guarantor shall have furnished to principal operating officer of the Underwriters such further informationCompany, certificates and documents dated as of each Closing Date, evidencing compliance with the Underwriters may reasonably requestprovisions of this subsection (e).
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter's obligation to purchase Securities pursuant to and pay for the Terms Agreement are Bonds as provided herein is subject to the accuracy fulfillment of the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditionsconditions at or before Closing:
(a) The Company Prospectus, the Indenture, the Bonds and this Purchase Contract shall have each been duly authorized, executed and delivered by the respective parties thereto, in substantially the form heretofore approved by the Underwriter, with only such changes therein as the Underwriter, WCA and the Guarantor Trustee shall have requested mutually agree upon, and caused the delivery registration of written opinions, substantially in the forms contemplated Bonds with the SEC and any states as determined by the Terms Agreement.Underwriter shall be effective;
(b) The Guarantor Bonds shall have requested been duly authorized, executed and caused PricewaterhouseCoopers, independent auditors for authenticated in accordance with the Guarantor, and such other independent auditors as may be specified in provisions of the Terms Agreement, to Indenture;
(c) The Underwriter shall have furnished to you, at received the Execution Time and at following documents:
(i) Executed counterparts of the Closing Date, letters Indenture;
(which may refer to letters previously delivered to one or more of you), ii) The opinions dated respectively as of the Execution Time date of closing of (A) Counsel for WCA and (C) Counsel for the Underwriter, each such opinion to cover such matters and to be in such form as shall be satisfactory to the Underwriter;
(iii) A certificate or certificates, dated the date of the Closing DateClosing, signed by duly authorized member of WCA and in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing DateUnderwriter, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(iA) As of the Closing, the representations and warranties of the Company WCA contained in the Agreement Section 4 hereof are true true, accurate and correct on complete in all material respects and as of the Closing Date with the same effect as if made on the Closing Date and the Company WCA has complied with all the its covenants and agreements and satisfied all the conditions on its part required in this Purchase Contract to be performed or satisfied complied with at or prior to the Closing DateClosing;
(iiB) There is no stop order suspending action or proceeding pending or threatened looking toward the effectiveness dissolution or liquidation of WCA;
(C) The execution and delivery by WCA of the Registration Statement has been issued Indenture, the Bonds and no proceedings for that purpose or under Section 8A of the Act this Purchase Contract have been instituted or, duly authorized and there shall be attached to the Company’s knowledge, threatened; andsaid certificate appropriate resolutions of WCA in which such authorization was given;
(iiiD) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there There has been no material adverse effect on change in the business, property or financial condition (financial or otherwise)of WCA as described in the Prospectus, prospects, earnings, business or properties of the Company, and except as set forth in provided for or contemplated herein or described in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificateProspectus, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there WCA has not been incurred any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions material liabilities other than in the ordinary course of business;
(E) The member of WCA executing the certificates required by this Section 6 has examined the Prospectus, except as set forth and, in or contemplated in his opinion, with respect to WCA , the Disclosure Package Project and the Final use of bond proceeds, neither the Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of nor any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.appendices thereto
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase and pay for the Securities pursuant which it has agreed to the Terms Agreement purchase hereunder, are subject to the accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofherein, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder hereunder, and to the following further conditions:
(a) The Company and the Guarantor Registration Statement shall have requested become effective and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor you shall have requested and caused PricewaterhouseCoopersreceived notice thereof not later than 10:00 A.M., independent auditors for Eastern time, on the Guarantor, and such other independent auditors as may be specified in day following the Terms date of this Agreement, or at such later time or on such later date as to have furnished to you, at which the Execution Time and at the Closing Date, letters (which Underwriter may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, agree in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct writing; on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) Dates no stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings for that or a similar purpose or under Section 8A of the Act shall have been instituted or shall be pending or, to your knowledge or to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties knowledge of the Company, except as set forth shall be contemplated by the Commission; any request on the part of the Commission for additional information shall have been complied with to the satisfaction of the Commission; and no stop order shall be in effect denying or contemplated suspending effectiveness of such qualification nor shall any stop order proceedings with respect thereto be instituted or pending or threatened. If required, the Prospectus shall have been filed with the Commission in the Disclosure Package manner and within the Final Prospectus (exclusive of any supplement thereto)time period required by Rule 424(b) under the Act.
(db) The Guarantor At the First Closing Date, the Underwriter shall have furnished to you a certificatereceived the opinion, signed by two executive officers dated as of the Guarantor with specific knowledge First Closing Date, of Atlas, Pearlman, Trop & Borkson, P.A., counsel for the financial matters of the GuarantorCompany, reasonably in form and substance satisfactory to you, dated counsel for the Closing DateUnderwriter, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations Company and warranties its Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the Guarantor their respective jurisdictions of organization, with all requisite corporate power and authority to own their properties and conduct their business as described in the Agreement Registration Statement and Prospectus and are true duly qualified or licensed to do business as foreign corporations and correct on and as are in good standing in each other jurisdiction in which the ownership or leasing of their properties or conduct of their business requires such qualification except where the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part failure to qualify or be performed or satisfied at or prior to the Closing Datelicensed will not have a Material Adverse Effect;
(ii) the authorized capitalization of the Company is as set forth in the Prospectus; the Securities as set forth in the Prospectus have been duly authorized and upon payment of consideration therefor, will be validly issued, fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; to such counsel's knowledge the outstanding shares of capital stock of the Company and its Subsidiaries have not been issued in violation of the preemptive rights of any shareholder and to such counsel's knowledge the shareholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase, nor are there any restrictions upon the voting or transfer of any of the capital stock except as provided in the Prospectus or as required by law. The Securities, the Purchase Option and the Warrant Agreement conform in all material respects to the respective descriptions thereof contained in the Prospectus; the shares of Common Stock underlying the Units, and the shares of Common Stock issuable upon exercise of Warrants, the Purchase Option, and the Warrant Agreement will have been duly authorized and, when issued and delivered in accordance with their respective terms, will be duly and validly issued, fully paid, non-assessable, free of preemptive rights to the best of their knowledge; to the best of their knowledge, all prior sales by the Company of the Company's securities, have been made in compliance with or under an exemption from registration under the Act and applicable state securities laws; a sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Warrants and Common Stock has been reserved for issuance upon exercise of the Warrants contained in the Purchase Option and to the best of such counsel's knowledge, neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any registration rights other than those which have been waived or satisfied for or relating to the registration of any shares of Common Stock;
(iii) this Agreement, the Purchase Option, and the Warrant Agreement have been duly and validly authorized, executed and delivered by the Company;
(iv) the certificates evidencing the Securities as described in the Registration Statement comply in all material respects with the descriptions set forth therein, and comply with the Delaware General Corporation Law, as in effect on the date hereof; each Warrant will be exercisable for one share of the Common Stock of the Company, respectively, and at the prices provided for in the Warrant Agreement;
(v) except as otherwise disclosed in the Registration Statement, such counsel knows of no pending or threatened legal or governmental proceedings to which the Company or its Subsidiaries are a party which would materially adversely affect the business, property, financial condition or operations of the Company or its Subsidiaries; or which question the validity of the Securities, this Agreement, the Warrant Agreement or the Purchase Option, or of any action taken or to be taken by the Company pursuant to this Agreement, the Warrant Agreement or the Purchase Option; to such counsel's knowledge there are no governmental proceedings or regulations required to be described or referred to in the Registration Statement which are not so described or referred to;
(vi) the execution and delivery of this Agreement, the Purchase Option or the Warrant Agreement and the incurrence of the obligations herein and therein set forth and the consummation of the transactions herein or therein contemplated, will not result in a breach or violation of, or constitute a default under the certificate of incorporation or by-laws of the Company or its Subsidiaries, or to the best knowledge of counsel after due inquiry, in the performance or observance of any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to which the Company or its Subsidiaries is a party or by which they or any of their properties is bound or in violation of any order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign the result of which would have a Material Adverse Effect;
(vii) the Registration Statement has become effective under the Act, and to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued is in effect, and no proceedings for that purpose have been instituted or under Section 8A are pending before, or threatened by, the Commission; the Registration Statement and the Prospectus (except for the financial statements and other financial data contained therein, or omitted therefrom, as to which such counsel need express no opinion) as of the Effective Date comply as to form in all material respects with the applicable requirements of the Act have been instituted or, to and the Guarantor’s knowledge, threatenedRules and Regulations;
(iiiviii) since in the date course of preparation of the most recent financial Registration Statement and the Prospectus such counsel has participated in conferences with the President of the Company with respect to the Registration Statement and Prospectus and such discussions did not disclose to such counsel any information which gives such counsel reason to believe that the Registration Statement or any amendment thereto at the time it became effective contained any untrue statement of a material fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary to make the statements included therein not misleading or incorporated by reference that the Prospectus or any supplement thereto contains any untrue statement of a material fact or omits to state a material fact necessary in order to make statements therein, in light of the circumstances under which they were made, not misleading (except, in the Disclosure Package case of both the Registration Statement and any amendment thereto and the Final Prospectus (exclusive of and any supplement thereto, for the financial statements, notes thereto and other financial information (including without limitation, the pro forma financial information) and schedules contained therein, as to which such counsel need express no opinion), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and;
(ivix) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given all descriptions in the Registration Statement (exclusive and the Prospectus, and any amendment or supplement thereto, of contracts and other agreements to which the Company or its Subsidiaries is a party are accurate and fairly present in all material respects the information required to be shown, and such counsel is familiar with all contracts and other agreements referred to in the Registration Statement and the Prospectus and any such amendment or supplement or filed as exhibits to the Registration Statement, and such counsel does not know of any amendment thereof)contracts or agreements to which the Company or its Subsidiaries is a party of a character required to be summarized or described therein or to be filed as exhibits thereto which are not so summarized, the Disclosure Package described or filed;
(exclusive x) no authorization, approval, consent, or license of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, governmental or any development involving a prospective change, regulatory authority or agency is necessary in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed connection with the offering authorization, issuance, transfer, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive Company, in connection with the execution, delivery and performance of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued this Agreement by or guaranteed by either the Company or in connection with the Guarantor by taking of any “nationally recognized statistical rating organization” (as defined for purposes action contemplated herein, or the issuance of Rule 436(g) the Purchase Option or the Securities underlying the Purchase Option, other than registrations or qualifications of the Securities under applicable state or foreign securities or Blue Sky laws and registration under the Act; and
(xi) the Units, shares of Common Stock and the Warrants have been duly authorized for quotation on the NASDAQ SmallCap Market System ("NASDAQ"). Such opinion shall also cover such matters incident to the transactions contemplated hereby as the Underwriter or any notice given counsel for the Underwriter shall reasonably request. In rendering such opinion, such counsel may rely upon certificates of any intended officer of the Company or potential decrease in any such rating public officials as to matters of fact; and may rely as to all matters of law other than the law of the United States or of a possible change the State of Florida or Delaware upon opinions of counsel satisfactory to you, in any such rating which case the opinion shall state that does they have no reason to believe that you and they are not indicate the direction of the possible changeentitled to so rely.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the Underwriters to purchase Securities pursuant to the Terms Agreement are subject to the accuracy of the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) The Company and the Guarantor shall have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor Company shall have requested and caused PricewaterhouseCoopers, independent auditors for the GuarantorCompany, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters letters, (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors executive officers of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendments or supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the CompanyCompany and its subsidiaries, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(ed) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) Since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the -------------------------------------- Underwriters to purchase Securities pursuant to and pay for the Terms Agreement are Notes on the Issuance Date shall be subject to the accuracy in all material respects of the respective representations and warranties on the part of each of the Company Issuer, the Seller and IOS Capital herein, in the Guarantor herein contained, to Assignment and Servicing Agreement and in the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofIndenture, to the performance by each the Issuer, the Seller and IOS Capital in all material respects of their respective obligations hereunder, under the Company Assignment and Servicing Agreement and under the Guarantor of all of its respective covenants and other obligations hereunder Indenture and to the following further additional conditions:
(a) The Company Issuer, the Seller and the Guarantor IOS Capital shall each have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
delivered a certificate (b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of youan "Officer's Certificate"), dated respectively as of the Execution Time and as of the Closing Issuance Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Dateits Vice President and its Chief Financial Officer, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of made by the Company Issuer, the Seller or IOS Capital (as the case may be) in this Agreement, the Indenture and the Assignment and Servicing Agreement are true and correct in all material respects at and as of the date of such Officer's Certificate as if made on and as of such date (except to the Closing Date with extent they expressly relate to an earlier date);
(ii) the same effect Issuer, the Seller or IOS Capital (as if made on the Closing Date and the Company case may be) has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement, the Indenture and the Assignment and Servicing Agreement at or prior to the Closing Datedate of such Officer's Certificate;
(iiiii) no nothing has come to such officer's attention that would lead him to believe that the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) such officer is not aware of (A) any request of the Commission for further amendment of the Registration Statement or the Final Prospectus for any additional information, (B) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings or the initiation or threatening of any proceeding for that purpose or under Section 8A (C) any notification with respect to the suspension of the Act qualification of the Notes for sale in any jurisdiction or the threatening of any proceeding for that purpose.
(b) You shall have been instituted orreceived a favorable opinion from Xxx Xxx, Esq. (subject to customary and usual qualifications), dated the Issuance Date and reasonably satisfactory in form and substance to the Company’s knowledgeUnderwriters and their counsel with respect to or to the effect that: (i) the existence and good standing of IOS Capital, threatened(ii) that the Issuer, the Seller and IOS Capital, as applicable, have the corporate authority to perform this Agreement, the Assignment and Servicing Agreement, the Indenture and the Insurance Agreement (collectively, the "Transaction Documents") and the transactions contemplated herein and therein; and
(iii) since the date due authorization, execution, delivery and enforceability of this Agreement and the other Transaction Documents, as applicable, by the Issuer, the Seller and IOS Capital; (iv) each of this Agreement and the other Transaction Documents are the legal, valid and binding obligation of the most recent financial statements included or incorporated Issuer, the Seller and IOS Capital, as applicable, enforceable against each of them in accordance with its terms (subject to customary exceptions relating to bankruptcy and laws affecting creditors' rights); (v) the Notes have been duly authorized, executed and delivered by reference the Issuer and constitute the legal, valid and binding obligations of the Issuer enforceable in accordance with their terms (subject to customary exceptions as to bankruptcy and laws affecting creditors' rights) and are entitled to the Disclosure Package benefits of the Indenture; (vi) the issuance and sale of the Notes by the Issuer, the performance of this Agreement by the Issuer, the Seller and IOS Capital and compliance by the Issuer, the Seller and IOS Capital with the terms of the Transaction Documents, as applicable, and the Final Prospectus consummation of the transactions contemplated herein and therein will not conflict with the organizational documents of the Issuer, the Seller or IOS Capital, or to the best of such counsel's knowledge, any other contract to which the Issuer, the Seller or IOS Capital is a party or by which any of them is bound; (exclusive vii) to the best of any supplement thereto)such counsel's knowledge, there has been is no legal or governmental proceeding threatened or pending against the Issuer, the Seller or IOS Capital which would have a material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties issuance of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration StatementNotes, the Disclosure Packageperformance by the Issuer, the Final Prospectus and any supplements Seller or amendments theretoIOS Capital of this Agreement or compliance by the Issuer, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date Seller or IOS Capital with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness terms of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.the
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase and pay for the Securities pursuant which it has agreed to the Terms Agreement purchase hereunder, are subject to the accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofherein, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder hereunder, and to the following further conditions:
(a) The Company and the Guarantor Registration Statement shall have requested become effective and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor you shall have requested and caused PricewaterhouseCoopersreceived notice thereof not later than 10:00 A.M., independent auditors for New York time, on the Guarantor, and such other independent auditors as may be specified in day following the Terms date of this Agreement, or at such later time or on such later date as to have furnished to you, at the Execution Time and at the Closing Date, letters (which you may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, agree in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct writing; on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) Dates no stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings for that or a similar purpose or under Section 8A of the Act shall have been instituted or shall be pending or, to your knowledge or to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties knowledge of the Company, except as set forth shall be contemplated by the Commission; any request on the part of the Commission for additional information shall have been complied with to the satisfaction of the Commission; and no stop order shall be in effect denying or contemplated suspending effectiveness of such qualification nor shall any stop order proceedings with respect thereto be instituted or pending or threatened. If required, the Prospectus shall have been filed with the Commission in the Disclosure Package manner and within the Final Prospectus (exclusive of any supplement thereto)time period required by Rule 424(b) under the Act.
(db) The Guarantor At the First Closing Date, you shall have furnished to you a certificatereceived the opinion, signed by two executive officers dated as of the Guarantor with specific knowledge First Closing Date, of Xxxxx, Xxxxxxx, Rose & Lander, LLP, counsel for the financial matters of the GuarantorCompany, reasonably in form and substance satisfactory to you, dated counsel for the Closing DateUnderwriter, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations Company and warranties its Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the Guarantor their respective jurisdictions of organization, with all requisite corporate power and authority to own their properties and conduct their business as described in the Agreement Registration Statement and Prospectus and are true duly qualified or licensed to do business as foreign corporations and correct on and as are in good standing in each other jurisdiction in which the ownership or leasing of their properties or conduct of their business requires such qualification except where the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part failure to qualify or be performed or satisfied at or prior to the Closing Datelicensed will not have a Material Adverse Effect;
(ii) the authorized capitalization of the Company as of _______ __, 1996 is as set forth in the Registration Statement; the Securities as set forth in the Registration Statement have been duly authorized and upon payment of consideration therefor, will be validly issued, fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; to such counsel's knowledge the outstanding shares of capital stock of the Company and its Subsidiaries have not been issued in violation of the preemptive rights of any shareholder and to such counsel's knowledge the shareholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase, nor are there any restrictions upon the voting or transfer of any of the capital stock except as provided in the Prospectus or as required by law. The Securities, the Purchase Option and the Warrant Agreement conform in all material respects to the respective descriptions thereof contained in the Prospectus; the shares of Common Stock underlying the Units, and the shares of Common Stock issuable upon exercise of Warrants, the Purchase Option, and the Warrant Agreement will have been duly authorized and, when issued and delivered in accordance with their respective terms, will be duly and validly issued, fully paid, non-assessable, free of preemptive rights to the best of their knowledge; to the best of their knowledge, all prior sales by the Company of the Company's securities, have been made in compliance with or under an exemption from registration under the Act and applicable state securities laws; a sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Warrants and Common Stock has been reserved for issuance upon exercise of the Warrants contained in the Purchase Option and to the best of such counsel's knowledge, neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any registration rights other than those which have been waived or satisfied for or relating to the registration of any shares of Common Stock;
(iii) this Agreement, the Purchase Option, and the Warrant Agreement have been duly and validly authorized, executed and delivered by the Company;
(iv) the certificates evidencing the Securities as described in the Registration Statement comply in all material respects with the descriptions set forth therein, and comply with the Delaware General Corporation Law, as in effect on the date hereof; each Warrant will be exercisable for one share of the Common Stock of the Company, respectively, and at the prices provided for in the Warrant Agreement;
(v) except as otherwise disclosed in the Registration Statement, such counsel knows of no pending or threatened legal or governmental proceedings to which the Company or its Subsidiaries are a party which would materially adversely affect the business, property, financial condition or operations of the Company or its Subsidiaries; or which question the validity of the Securities, this Agreement, the Warrant Agreement or the Purchase Option, or of any action taken or to be taken by the Company pursuant to this Agreement, the Warrant Agreement or the Purchase Option; to such counsel's knowledge there are no governmental proceedings or regulations required to be described or referred to in the Registration Statement which are not so described or referred to;
(vi) the execution and delivery of this Agreement, the Purchase Option or the Warrant Agreement and the incurrence of the obligations herein and therein set forth and the consummation of the transactions herein or therein contemplated, will not result in a breach or violation of, or constitute a default under the certificate of incorporation or by-laws of the Company or its Subsidiaries, or to the best knowledge of counsel after due inquiry, in the performance or observance of any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to which the Company or its Subsidiaries is a party or by which they or any of their properties is bound or in violation of any order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign the result of which would have a Material Adverse Effect;
(vii) the Registration Statement has become effective under the Act, and to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued is in effect, and no proceedings for that purpose have been instituted or under Section 8A are pending before, or threatened by, the Commission; the Registration Statement and the Prospectus (except for the financial statements and other financial data contained therein, or omitted therefrom, as to which such counsel need express no opinion) as of the Effective Date comply as to form in all material respects with the applicable requirements of the Act have been instituted or, to and the Guarantor’s knowledge, threatenedRules and Regulations;
(iiiviii) since in the date course of preparation of the most recent financial Registration Statement and the Prospectus such counsel has participated in conferences with the President of the Company with respect to the Registration Statement and Prospectus and such discussions did not disclose to such counsel any information which gives such counsel reason to believe that the Registration Statement or any amendment thereto at the time it became effective contained any untrue statement of a material fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary to make the statements included therein not misleading or incorporated by reference that the Prospectus or any supplement thereto contains any untrue statement of a material fact or omits to state a material fact necessary in order to make statements therein, in light of the circumstances under which they were made, not misleading (except, in the Disclosure Package case of both the Registration Statement and any amendment thereto and the Final Prospectus (exclusive of and any supplement thereto, for the financial statements, notes thereto and other financial information (including without limitation, the pro forma financial information) and schedules contained therein, as to which such counsel need express no opinion), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and;
(ivix) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given all descriptions in the Registration Statement (exclusive and the Prospectus, and any amendment or supplement thereto, of contracts and other agreements to which the Company or its Subsidiaries is a party are accurate and fairly present in all material respects the information required to be shown, and such counsel is familiar with all contracts and other agreements referred to in the Registration Statement and the Prospectus and any such amendment or supplement or filed as exhibits to the Registration Statement, and such counsel does not know of any amendment thereof)contracts or agreements to which the Company or its Subsidiaries is a party of a character required to be summarized or described therein or to be filed as exhibits thereto which are not so summarized, the Disclosure Package described or filed;
(exclusive x) no authorization, approval, consent, or license of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, governmental or any development involving a prospective change, regulatory authority or agency is necessary in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed connection with the offering authorization, issuance, transfer, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive Company, in connection with the execution, delivery and performance of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued this Agreement by or guaranteed by either the Company or in connection with the Guarantor by taking of any “nationally recognized statistical rating organization” (as defined for purposes action contemplated herein, or the issuance of Rule 436(g) the Purchase Option or the Securities underlying the Purchase Option, other than registrations or qualifications of the Securities under applicable state or foreign securities or Blue Sky laws and registration under the Act; and
(xi) the Units, shares of Common Stock and the Warrants have been duly authorized for quotation on the NASDAQ SmallCap Market System ("NASDAQ"). Such opinion shall also cover such matters incident to the transactions contemplated hereby as the Underwriter or any notice given counsel for the Underwriter shall reasonably request. In rendering such opinion, such counsel may rely upon certificates of any intended officer of the Company or potential decrease in any such rating public officials as to matters of fact; and may rely as to all matters of law other than the law of the United States or of a possible change the State of New York or Delaware upon opinions of counsel satisfactory to you, in any such rating which case the opinion shall state that does they have no reason to believe that you and they are not indicate the direction of the possible changeentitled to so rely.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Hertz Technology Group Inc)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase Securities pursuant and pay for the Units which it has agreed to the Terms Agreement purchase hereunder, are subject to the accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofherein, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder hereunder, and to the following further conditions:
(a) The Company and the Guarantor Registration Statement shall have requested become effective and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor you shall have requested and caused PricewaterhouseCoopersreceived notice thereof not later than 10:00 A.M., independent auditors for New York time, on the Guarantor, and such other independent auditors as may be specified in day following the Terms date of this Agreement, or at such later time or on such later date as to have furnished to you, at the Execution Time and at the Closing Date, letters (which you may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, agree in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct writing; on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) Dates no stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings for that or a similar purpose or under Section 8A of the Act shall have been instituted or shall be pending or, to your knowledge or to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties knowledge of the Company, except as set forth shall be contemplated by the Commission; any request on the part of the Commission for additional information shall have been complied with to the satisfaction of the Commission; and no stop order shall be in effect denying or contemplated suspending effectiveness of such qualification nor shall any stop order proceedings with respect thereto be instituted or pending or threatened. If required, the Prospectus shall have been filed with the Commission in the Disclosure Package manner and within the Final Prospectus (exclusive of any supplement thereto)time period required by Rule 424(b) under the Act.
(db) The Guarantor At the First Closing Date, you shall have furnished to you a certificatereceived the opinion, signed by two executive officers dated as of the Guarantor with specific knowledge First Closing Date, of Singer Xxxxxxxx LLP, counsel for the financial matters of the GuarantorCompany, reasonably in form and substance satisfactory to you, dated counsel for the Closing DateUnderwriter, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations Company and warranties its Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the Guarantor their respective jurisdictions of organization, with all requisite corporate power and authority to own their properties and conduct their business as described in the Agreement Registration Statement and Prospectus and are true duly qualified or licensed to do business as foreign corporations and correct on and as are in good standing in each other jurisdiction in which the ownership or leasing of their properties or conduct of their business requires such qualification except where the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part failure to qualify or be performed or satisfied at or prior to the Closing Datelicensed will not have a Material Adverse Effect;
(ii) no stop order suspending the effectiveness authorized capitalization of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A Company as of the Act have been instituted or_______, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except 1997 is as set forth in or contemplated the Registration Statement; the Securities as set forth in the Disclosure Package Registration Statement have been duly authorized and upon payment of consideration therefor, will be validly issued, fully paid and non-assessable and conform in all material respects to the Final Prospectus (exclusive description thereof contained in the Prospectus; to such counsel's knowledge the outstanding shares of capital stock of the Company and its Subsidiaries have not been issued in violation of the preemptive rights of any supplement thereto); and
(iv) since shareholder and to such counsel's knowledge the Execution Timeshareholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase, nor are there has not been any decrease in restrictions upon the rating voting or transfer of any of the debt securities issued capital stock except as provided in the Prospectus or as required by or guaranteed by law. The Securities, the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under Purchase Option and the Act) or any notice given of any intended or potential decrease Warrant Agreement conform in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(e) Subsequent all material respects to the Execution Time or, if earlier, the dates as of which information is given respective descriptions thereof contained in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.the
Appears in 1 contract
Samples: Underwriting Agreement (All Communications Corp/Nj)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase Securities pursuant to and pay for the Terms Agreement are Offered Notes on the Issuance Date shall be subject to the accuracy in all material respects of the representations and warranties on the part of each of the Company Issuer and Charter herein, in the Guarantor herein containedServicing Agreement, to the accuracy of Seller Contribution and Sale Agreement, the statements of Transferor Contribution and Sale Agreement and in the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofIndenture, to the performance by each the Issuer and Charter in all material respects of the Company and the Guarantor of all of its respective covenants and other their obligations hereunder and to the following further additional conditions:
(a) The Company Issuer and the Guarantor Charter shall each have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
delivered a certificate (b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of youan "Officer's Certificate"), dated respectively as of the Execution Time and as of the Closing Issuance Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Dateits Vice President and its Chief Financial Officer, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of made by the Company Issuer or Charter (as the case may be) in this Agreement, the Indenture, the Seller Contribution and Sale Agreement, the Transferor Contribution and Sale Agreement and the Servicing Agreement are true and correct in all material respects at and as of the date of such Officer's Certificate as if made on and as of such date (except to the Closing Date with extent they expressly relate to an earlier date);
(ii) the same effect Issuer or Charter (as if made on the Closing Date and the Company case may be) has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement, the Indenture, the Seller Contribution and Sale Agreement, the Transferor Contribution and Sale Agreement and the Servicing Agreement at or prior to the Closing Datedate of such Officer's Certificate;
(iii) nothing has come to such officer's attention that would lead him to believe that the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) such officer is not aware of (A) any request of the Commission for further amendment of the Registration Statement or the Final Prospectus for any additional information, (B) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceeding for that purpose or (C) any notification with respect to the suspension of the qualification of the Offered Notes for sale in any jurisdiction or the threatening of any proceeding for that purpose.
(b) You shall have received from Xxxxxxx Xxxxxxxx, general counsel of Charter, a favorable opinion (subject to customary and usual qualifications) with respect to Charter, the Transferor and the Issuer, dated the Issuance Date and reasonably satisfactory in form and substance to the Underwriter and their counsel with respect to, or to the effect that: (i) the due formation and qualification of each of the Issuer, the Transferor and Charter and that the Issuer, the Transferor, and Charter, as applicable, have the requisite power and authority to perform this Agreement, the Seller Contribution and Sale Agreement, the Transferor Contribution and Sale Agreement, the Servicing Agreement, the Indenture and the Placement Agreement (the "Transaction Documents") and the transactions contemplated herein and therein; (ii) the due authorization, execution, delivery and enforceability of this Agreement and the other Transaction Documents as applicable, by the Issuer, the Transferor and Charter; (iii) each of this Agreement and the other Transactions Documents are legal, valid and binding obligation of the Issuer, the Transferor and Charter, as applicable, enforceable against each of them in accordance with its terms (subject to customary exceptions relating to bankruptcy and laws affecting creditors' rights); and (iv) the issuance and sale of the Offered Notes by the Issuer, the performance of this Agreement by the Issuer, the Transferor and Charter and the compliance by the Issuer, the Transferor and Charter with the terms of the Transactions Documents, as applicable, and the consummation of the transactions contemplated herein and therein will not conflict with the organizational documents of the Issuer, the Transferor or Charter, or any other contracts to which the Issuer, the Transferor or Charter is a party or by which either of them is bound.
(c) You shall have received from Xxxxx Xxxxxxxxxx LLP, a favorable opinion (subject to customary and usual qualifications) with respect to Charter and the Issuer, dated the Issuance Date and reasonably satisfactory in form and substance to the Underwriter and their counsel with respect to, or to the effect that: (i) the Offered Notes have been duly authorized, executed and delivered by the Issuer and constitute the legal, valid and binding obligations of the Issuer, enforceable in accordance with their terms (subject to customary exceptions as to bankruptcy and laws affecting creditors' rights) and are entitled to the benefits of the Indenture; (ii) there is no legal or governmental proceeding pending or, to the best of my knowledge, threatened against the Issuer or Charter which would have a material adverse effect on the issuance of the Offered Notes; (iii) in the event a court disregarded the intent of the parties and characterized the transfers as a pledge of collateral, the Seller Contribution and Sale Agreement and the Transferor Contribution and Sale Agreement and accompanying documentation creates a valid security interest in the Leases and the Equipment (or interests therein) under applicable law; (iv) assuming no prior financing statements covering the Leases are in effect based on a review of certain UCC searches, that financing statements covering the Leases and naming (A) the Seller as debtor and the Transferor as secured party, (B) the Issuer as secured party and Transferor as debtor and (C) the Issuer as debtor and the Trustee as secured party are being filed in the appropriate filing offices of the State of New York, and assuming that the Trustee has taken possession of the Leases, the Trustee has a first priority perfected security interest in all right, title and interest of Charter, the Transferor and the Issuer in the Leases; and (v) on the Issuance Date the Registration Statement is effective, and, that to the best of such counsel's knowledge no stop order suspending the effectiveness of the Registration Statement has been issued or is threatened, and no proceedings for that purpose although such counsel is not passing on the factual accuracy, completeness or under Section 8A fairness of the Act have been instituted orstatements contained in the Registration Statement and the Prospectus, nothing came to such counsel's attention that leads such counsel to believe that either the Company’s knowledge, threatened; and
Registration Statement or the Prospectus (iii) since as of the Effective Date or the date of the most recent financial Prospectus) 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 included or incorporated by reference therein, in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties light of the Companycircumstances under which they were made, except not misleading. In rendering such opinion, counsel may rely, to the extent deemed proper and as set forth stated therein, as to matters of fact on certificates of responsible officers of the Issuer or Charter and public officials and as to matters of state law of jurisdictions other than the jurisdictions in or contemplated in which such counsel is admitted to practice, on opinions of local counsel satisfactory to the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Underwriter.
(d) The Guarantor Underwriter shall have furnished to you a certificatereceived from Cadwalader Xxxxxxxxxx & Xxxx, signed by two executive officers of special counsel for the Guarantor with specific knowledge of the financial matters of the GuarantorUnderwriter, reasonably satisfactory to yousuch opinion or opinions, dated the Closing Issuance Date, with respect to the effect that validity of the signers of such certificate have carefully examined Offered Notes, the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments theretoProspectus, and other related matters as the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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 changeUnderwriter may require.
(e) Subsequent to At the Execution Time orand at the Issuance Date, if earlierXxxxx & Xxxxx shall have furnished to the Underwriter a letter or letters, dated the dates as date of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) this Agreement and the Final Prospectus (exclusive of any supplement thereto)Issuance Date, there shall not have been any change, or any development involving a prospective changerespectively, in or affecting form and substance satisfactory to the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Underwriter.
(f) Subsequent to The Class A-1 Notes shall have been rated at least "[ ]", and "[ ]", that the Execution TimeClass A-2, there A-3, and A-4 notes be rated at least "[ ]" and "[ ]", that the Class B Notes be rated at least "[ ]" and "[ ]", that the Class C Notes be rated at least "[ ]", and "[ ]", and that the Class D Notes be rated at least "[ ]" and "[ ]" by [ ], and [ ], respectively, which ratings shall not have been any decrease reduced or withdrawn as evidenced by the Officer's Certificate referred to in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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 changeSection 6(a).
(g) Prior Counsel to the Closing Trustee shall have delivered a favorable opinion (subject to customary and usual exceptions), dated the Issuance Date, as the Company case may be, and satisfactory in form and substance to the Guarantor Underwriter and counsel for the Underwriter and to the Issuer and Charter and their counsel with respect to, or to the effect that: (i) the due incorporation and valid existence of the Trustee, (ii) the due authorization, execution and delivery by the Trustee of the Indenture, (iii) the Indenture is the legal, valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms (subject to customary and usual exceptions) and (iv) the execution, delivery and performance of the Indenture will not conflict with the Trustee's organizational documents.
(h) All proceedings in connection with the transactions contemplated by this Agreement and all documents incident hereto shall be reasonably satisfactory in form and substance to you, and your special counsel shall have furnished to the Underwriters received such further other information, certificates and documents as the Underwriters you or they may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Charter Equipment Lease 1998-1 LLC)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Your obligations, as Underwriter to purchase Securities pursuant to and pay for the Terms Agreement are Shares, as provided herein, shall be subject to the accuracy in all material respects, as of the date hereof and as of the Closing Date, of the representations and warranties on the part of each of the Company and the Guarantor herein containedcontained herein, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further additional conditions:
(a) The Company All filings of the Prospectus required by Rule 424 of the Rules and the Guarantor Regulations shall have requested been made. No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and caused no proceeding for that purpose shall have been initiated or, to your knowledge or the delivery knowledge of written opinionsthe Company, substantially in the forms threatened or contemplated by the Terms AgreementCommission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to your reasonable satisfaction.
(b) The Guarantor You shall not have requested and caused PricewaterhouseCoopers, independent auditors for disclosed in writing to the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, Company on or prior to have furnished to you, at the Execution Time and at the Closing Date, letters that the Registration Statement or Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of your counsel, is material, or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(which may refer to letters previously delivered to c) On the Closing Date, you shall have received one or more of you), opinions from counsel for the Company addressed to you and dated respectively the Closing Date as of to the Execution Time and as of respective matters set forth in Schedule I attached hereto.
(d) You shall have received on the Closing Date, from Hunton & Williams, your counsel, such opinion or opinions, dated the Closing Xxxx xxxh respect to the incorporation of the Company, the validity of the Shares, the Registration Statement, the Prospectus and other related matters as you may reasonably require; the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass on such matters.
(e) You shall have received at or prior to the Closing Date from Hunton & Williams a memorandum or memoranda, in form and substance satisfactoxx xx xxu, with respect to the qualification for offering and sale by you of the Shares under state securities or Blue Sky laws of such jurisdictions as you may have designated to the Company.
(f) On the date of this Agreement and on the Closing Date, you shall have received from Ernst & Young LLP, a letter or letters, dated the date of this Agreement and the Closing Date, respectively, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm accountants with respect to the Company within the meaning of the Act and the Exchange Act published Rules and covering Regulations, and stating to the matters that are ordinarily covered by “comfort letters” drafted effect set forth in accordance with Statement of Accounting Standards No. 72Schedule II hereto.
(cg) The Company shall have furnished to you a certificateExcept as contemplated in or incorporated by reference into the Prospectus, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of neither the Company in the Agreement are true and correct on and as nor any of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act subsidiaries shall have been instituted or, to the Company’s knowledge, threatened; and
(iii) sustained since the date of the most recent latest audited financial statements included or incorporated by reference in the Disclosure Package Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree; and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, subsequent to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the respective dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive Prospectus, neither the Company nor any of its subsidiaries shall have incurred any supplement thereto)material liability or obligation, direct or contingent, or entered into material transactions, and there shall not have been any change, change in the capital stock or long-term debt of the Company and its subsidiaries or any development involving a prospective change, material change in or affecting the condition (financial or otherwiseother), earningsnet worth, business business, affairs, management, prospects or properties results of operations of the Guarantor and Company or its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which iswhich, in any such case described in clause (i) or (ii), is in your sole judgment, judgment so material and or adverse as to make it impractical impracticable or inadvisable to proceed with the public offering or the delivery of the Securities as Shares being delivered on the Closing Date on the terms and in the manner contemplated in the Prospectus.
(h) There shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the American Stock Exchange or the establishing on such exchanges by the Commission or by such exchanges of minimum or maximum prices which are not in force and effect on the date hereof; (ii) a general moratorium on commercial banking activities declared by either federal or New York State authorities; (iii) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any such event specified in this clause (iii) in your judgment is material and adverse and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares in the manner contemplated in the Prospectus; (iv) any calamity or crisis, change in national, international or world affairs, act of God, change in the international or domestic markets, or change in the existing financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in this clause (iv) is material and adverse and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares in the manner contemplated in the Prospectus; or (v) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule, or order of any court or other governmental authority, or the taking of any action by any federal, state or local government or agency in respect of fiscal or monetary affairs, if the effect of any such event specified in this clause (v) in your judgment is material and adverse and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares in the manner contemplated in the Prospectus.
(i) You shall have received certificates, dated the Closing Date and signed by the President and the Chief Financial Officer of the Company stating that (i) they have carefully examined the Registration Statement (exclusive of and the Prospectus as amended or supplemented and all documents incorporated by reference therein and nothing has come to their attention that would lead them to believe that either the Registration Statement or the Prospectus, or any amendment thereof) or supplement thereto or any documents incorporated by reference therein as of their respective effective, issue or filing dates, contained, and the Disclosure Package Prospectus as amended or supplemented and all documents incorporated by reference therein and when read together with the Final Prospectus documents incorporated by reference therein, at the Closing Date, contains any untrue statement of a material fact, or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and, that (exclusive ii) all representations and warranties made herein by the Company are true and correct in all material respects at the Closing Date, with the same effect as if made on and as of any supplement thereto)the Closing Date, and all agreements herein to be performed by the Company on or prior to the Closing Date have been duly performed in all material respects.
(fj) Subsequent to the Execution Time, there The Company shall not have failed, refused, or been unable, at or prior to the Closing Date to have performed in all material respects any decrease in the rating of agreement on their part to be performed or any of the debt securities issued conditions herein contained and required to be performed or satisfied by them at or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior prior to the Closing Date, the .
(k) The Company and the Guarantor shall have furnished to you at the Underwriters Closing Date such further informationother certificates as you may have reasonably requested as to the accuracy, certificates on and as of the Closing Date, of the representations and warranties of the Company herein and as to the performance by the Company of their obligations hereunder.
(l) The Shares shall have been approved for trading upon official notice of issuance on the New York Stock Exchange. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to you and to Chapman and Cutler, your counsel. The Company will furnish you witx xxxx confxxxxx copies of such opinions, certificates, letters and documents as the Underwriters you may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Healthcare Realty Trust Inc)
Conditions of Underwriters’ Obligation. The obligations of the several Underwriters to purchase Securities pursuant and pay for the Shares and Warrants which they have respectively agreed to the Terms Agreement purchase hereunder are subject to the accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofSelling Shareholders set forth herein, to the performance by each of the Company and the Guarantor Selling Shareholders of all of its their respective covenants and other obligations hereunder hereunder, and to the satisfaction (at or prior to the Closing Dates), of each of following further conditions:
(a) The Company Registration Statement shall have become effective and the Guarantor Underwriters shall have requested and caused received notice thereof not later than 10:00 a.m., New York City time, on the delivery of written opinions, substantially in date on which the forms contemplated by the Terms Agreement.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, amendment to the effect that Registration Statement originally filed with respect to the signers of such certificate have carefully examined Shares and Warrants or to the Registration Statement, as the Disclosure Packagecase may be, containing information regarding the initial public offering price of the Shares and Warrants has been filed with the Commission, or such later time and date as shall have been agreed to by the Underwriters; if required, the Final Prospectus or any Term Sheet that constitutes a part thereof and any supplements amendment or amendments thereto, and supplement thereto shall have been filed with the Terms Agreement and that:
(i) the representations and warranties of the Company Commission in the Agreement are true manner and correct within the time period required by Rule 434 and 424(b) under the Act; on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) Dates, no stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings for that or a similar purpose or under Section 8A of the Act shall have been instituted or shall be pending or, to the Company’s knowledge, threatened; and
(iii) since Underwriters' knowledge or to the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties knowledge of the Company, except shall be contemplated by the Commission; any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the several Underwriters;
(b) At the First Closing Date, the Underwriters shall have received the opinion, addressed to the Underwriters, dated as set forth in or contemplated in of the Disclosure Package First Closing Date, of Xxxxx & Xxxxxxx LLP, Washington, D.C. and Warsaw, Poland, counsel for the Company and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificateSelling Shareholders, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably in form and substance satisfactory to you, dated counsel for the Closing DateUnderwriters, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations Company has been duly incorporated and warranties is validly existing as a corporation in good standing under the laws of the Guarantor State of Delaware, with full corporate power and authority to own its properties and conduct its business as described in the Agreement are true Registration Statement and correct on Prospectus and is duly qualified or licensed to do business as a foreign corporation and is in good standing in each jurisdiction in which the ownership or leasing of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed properties or satisfied at or prior to the Closing Dateconduct of its business requires such qualification;
(ii) no stop order suspending the effectiveness Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of Poland, with full corporate power and authority to own its properties and conduct its business as described in the Registration Statement has been issued and no proceedings for that purpose Prospectus and is duly qualified or under Section 8A licensed to do business as a foreign corporation and is in good standing in each jurisdiction in which the ownership or leasing of its properties or conduct of its business requires such qualification; all of the Act outstanding shares of capital stock of the Subsidiary have been instituted orduly authorized and validly issued, are fully paid and nonassessable and free of preemptive or similar rights, and are owned by the Company, free and clear of any lien, adverse claim, security interest or other encumbrance; no options, warrants, or other rights to purchase, agreements or other obligations to issue, or agreements or other rights to convert any obligation into, any shares of capital stock of the Guarantor’s knowledge, threatenedSubsidiary have been granted or entered into by the Company or the Subsidiary;
(iii) since to the date best knowledge of such counsel, (A) each of the most recent financial statements included Company and the Subsidiary has obtained, or incorporated by reference is in the Disclosure Package process of obtaining, all licenses, permits and other governmental authorizations necessary to the conduct of its business as described in the Prospectus, (B) such licenses, permits and other governmental authorizations obtained are in full force and effect, and (C) each of the Company and the Final Prospectus Subsidiary are in all material respects complying therewith;
(exclusive iv) the authorized capitalization of the Company as of _____,1997 is as set forth under the caption "Capitalization" in the Prospectus; all shares of the Company's outstanding stock requiring authorization for issuance by the Company's Board of Directors have been duly authorized and validly issued, are fully paid and non- assessable and conform to the description thereof contained in the Prospectus; the outstanding shares of Common Stock have not been issued in violation of the preemptive rights of any supplement thereto), there has been no material adverse effect on shareholder and the condition (financial or otherwise), prospects, earnings, business or properties shareholders of the Guarantor and its subsidiariesCompany do not have any preemptive rights or other rights to subscribe for or to purchase, taken as a whole, nor are there any restrictions upon the voting or transfer of any of the shares of Common Stock; except as set forth in the Prospectus, no options, warrants, or contemplated other rights to purchase, agreements or other obligations to issue, or agreements or other rights to convert any obligation into, any shares of capital stock of the Company have been granted or entered into by the Company; the Common Stock, the Warrants, the Underwriters' Unit Purchase Option and the Warrant Agreement conform to the respective descriptions thereof contained in the Disclosure Package Prospectus; the Shares have been, and the Final Prospectus (exclusive shares of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any Common Stock to be issued upon exercise of the debt securities Warrants and the Underwriters' Unit Purchase Option, upon issuance in accordance with the terms of such Warrants, the Warrant Agreement and the Underwriters' Unit Purchase Option, have been duly authorized and, when issued by or guaranteed and delivered, will be duly and validly issued, fully paid, non-assessable, free of preemptive rights and no personal liability will attach to the ownership thereof; all prior sales by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) its securities have been made in compliance with or under exemption from registration under the 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 Act and applicable state securities laws and no shareholders of the possible change.
(e) Subsequent Company have any rescission rights with respect to securities of the Company; a sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Warrants and the Underwriters' Unit Purchase Option; and, to the Execution Time orbest of such counsel's knowledge, if earlier, neither the dates as filing of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with nor the offering or delivery sale of the Securities Shares and Warrants as contemplated by this Agreement gives rise to any registration rights or other rights, other than those which have been waived or satisfied, for or relating to the Registration Statement (exclusive registration of any amendment thereofshares of Common Stock or other securities of the Company;
(v) this Agreement and the Disclosure Package Warrant Agreement have been duly and validly authorized, executed and delivered by the Company and by or on behalf of each of the Selling Shareholders, and the Final Prospectus Underwriters' Unit Purchase Option has been duly and validly authorized, executed and delivered by the Company, and, assuming due execution by each other party hereto or thereto, each of such agreements constitutes a legal, valid and binding obligation of the Company and each of the Selling Shareholders, as the case may be, enforceable against the Company and each of the Selling Shareholders, as the case may be, in accordance with their respective terms (exclusive except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting enforcement of creditors' rights and the application of equitable principles in any action, legal or equitable, and except as rights to indemnity or contribution may be limited by applicable law);
(vi) the Powers of Attorney and the Custody Agreements have been duly and validly executed and delivered by or on behalf of each of the Selling Shareholders; upon delivery of certificates for the Option Shares to be sold by the Selling Shareholders under this Agreement and the payment therefor as contemplated by this Agreement, valid and marketable title to the Option Shares represented thereby will have been acquired by the Underwriters, free and clear of all security interests, liens, encumbrances, claims or equities whatsoever; and nothing has come to the attention of such counsel which caused them to believe that any Selling Shareholder does not have full legal right, power and authority to sell, transfer and deliver the Option Shares to be sold by him or her or it under this Agreement;
(vii) the certificates evidencing the shares of Common Stock are in valid and proper legal form and conform to the requirements of the General Corporation Law of the State of Delaware; the Warrants will be exercisable for shares of Common Stock in accordance with the terms of the Warrants and at the prices therein provided for; and the warrants underlying the Underwriters' Unit Purchase Option will be exercisable for shares of Common Stock in accordance with the terms of the Underwriters' Unit Purchase Option and at the prices therein provided for;
(viii) such counsel knows of no pending or threatened legal or governmental proceedings to which either the Company or the Subsidiary is a party which could materially adversely affect the business, property, financial condition or operations of either the Company or the Subsidiary; or which question the validity of the Shares, the Warrants, this Agreement, the Warrant Agreement, the Underwriters' Unit Purchase Option, the Powers of Attorney or the Custody Agreements, or of any supplement thereto).
(f) Subsequent action taken or to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed be taken by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior Subsidiary pursuant to the Closing Datethis Agreement, the Warrant Agreement, the Underwriters' Unit Purchase Option, the Powers of Attorney or the Custody Agreements; and no such proceedings are known to such counsel to be contemplated against either the Company and or the Guarantor shall have furnished Subsidiary; there are no governmental proceedings or regulations required to be described or referred to in the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.Registration Statement which are not so described or referred to;
Appears in 1 contract
Samples: Underwriting Agreement (Central European Distribution Corp)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase and pay for the Securities pursuant which it has agreed to the Terms Agreement purchase hereunder, are subject to the accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofherein, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder hereunder, and to the following further conditions:
(a) The Company and the Guarantor Registration Statement shall have requested become effective and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor you shall have requested and caused PricewaterhouseCoopersreceived notice thereof not later than 10:00 A.M., independent auditors for New York time, on the Guarantor, and such other independent auditors as may be specified in day following the Terms date of this Agreement, or at such later time or on such later date as to have furnished to you, at the Execution Time and at the Closing Date, letters (which you may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, agree in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct writing; on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) Dates no stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings for that or a similar purpose or under Section 8A of the Act shall have been instituted or shall be pending or, to your knowledge or to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties knowledge of the Company, except as set forth shall be contemplated by the Commission; any request on the part of the Commission for additional information shall have been complied with to the satisfaction of the Commission; and no stop order shall be in effect denying or contemplated suspending effectiveness of such qualification nor shall any stop order proceedings with respect thereto be instituted or pending or threatened. If required, the Prospectus shall have been filed with the Commission in the Disclosure Package manner and within the Final Prospectus (exclusive of any supplement thereto)time period required by Rule 424(b) under the Act.
(db) The Guarantor At the First Closing Date, you shall have furnished to you a certificatereceived the opinion, signed by two executive officers dated as of the Guarantor with specific knowledge First Closing Date, of Xxxxx & Xxxxxx, LLP, counsel for the financial matters of the GuarantorCompany, reasonably in form and substance satisfactory to you, dated counsel for the Closing DateUnderwriter, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations Company and warranties its Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the Guarantor their respective jurisdictions of organization, with all requisite corporate power and authority to own their properties and conduct their business as described in the Agreement Registration Statement and Prospectus and are true duly qualified or licensed to do business as foreign corporations and correct on and as are in good standing in each other jurisdiction in which the ownership or leasing of their properties or conduct of their business requires such qualification except where the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part failure to qualify or be performed or satisfied at or prior to the Closing Datelicensed will not have a Material Adverse Effect;
(ii) the authorized capitalization of the Company as of May 31, 1996 is as set forth in the Registration Statement; the Securities as set forth in the Registration Statement have been duly authorized and upon payment of consideration therefor, will be validly issued, fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; to such counsel's knowledge the outstanding shares of capital stock of the Company and its Subsidiaries have not been issued in violation of the preemptive rights of any shareholder and to such counsel's knowledge the shareholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase, nor are there any restrictions upon the voting or transfer of any of the capital stock except as provided in the Prospectus or as required by law. The Securities, the Purchase Option and the Warrant Agreement conform in all material respects to the respective descriptions thereof contained in the Prospectus; the shares of Common Stock underlying the Units, and the shares of Common Stock issuable upon exercise of Warrants, the Purchase Option, and the Warrant Agreement will have been duly authorized and, when issued and delivered in accordance with their respective terms, will be duly and validly issued, fully paid, non-assessable, free of preemptive rights to the best of their knowledge; to the best of their knowledge, all prior sales by the Company of the Company's securities, have been made in compliance with or under an exemption from registration under the Act and applicable state securities laws; a sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Warrants and Common Stock has been reserved for issuance upon exercise of the Warrants contained in the Purchase Option and to the best of such counsel's knowledge, neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any registration rights other than those which have been waived or satisfied for or relating to the registration of any shares of Common Stock;
(iii) this Agreement, the Purchase Option, and the Warrant Agreement have been duly and validly authorized, executed and delivered by the Company;
(iv) the certificates evidencing the Securities as described in the Registration Statement comply in all material respects with the descriptions set forth therein, and comply with the Delaware General Corporation Law, as in effect on the date hereof; each Warrant will be exercisable for one share of the Common Stock of the Company, respectively, and at the prices provided for in the Warrant Agreement;
(v) except as otherwise disclosed in the Registration Statement, such counsel knows of no pending or threatened legal or governmental proceedings to which the Company or its Subsidiaries are a party which would materially adversely affect the business, property, financial condition or operations of the Company or its Subsidiaries; or which question the validity of the Securities, this Agreement, the Warrant Agreement or the Purchase Option, or of any action taken or to be taken by the Company pursuant to this Agreement, the Warrant Agreement or the Purchase Option; to such counsel's knowledge there are no governmental proceedings or regulations required to be described or referred to in the Registration Statement which are not so described or referred to;
(vi) the execution and delivery of this Agreement, the Purchase Option or the Warrant Agreement and the incurrence of the obligations herein and therein set forth and the consummation of the transactions herein or therein contemplated, will not result in a breach or violation of, or constitute a default under the certificate of incorporation or by-laws of the Company or its Subsidiaries, or to the best knowledge of counsel after due inquiry, in the performance or observance of any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to which the Company or its Subsidiaries is a party or by which they or any of their properties is bound or in violation of any order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign the result of which would have a Material Adverse Effect;
(vii) the Registration Statement has become effective under the Act, and to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued is in effect, and no proceedings for that purpose have been instituted or under Section 8A are pending before, or threatened by, the Commission; the Registration Statement and the Prospectus (except for the financial statements and other financial data contained therein, or omitted therefrom, as to which such counsel need express no opinion) as of the Effective Date comply as to form in all material respects with the applicable requirements of the Act have been instituted or, to and the Guarantor’s knowledge, threatenedRules and Regulations;
(iiiviii) since in the date course of preparation of the most recent financial Registration Statement and the Prospectus such counsel has participated in conferences with the President of the Company with respect to the Registration Statement and Prospectus and such discussions did not disclose to such counsel any information which gives such counsel reason to believe that the Registration Statement or any amendment thereto at the time it became effective contained any untrue statement of a material fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary to make the statements included therein not misleading or incorporated by reference that the Prospectus or any supplement thereto contains any untrue statement of a material fact or omits to state a material fact necessary in order to make statements therein, in light of the circumstances under which they were made, not misleading (except, in the Disclosure Package case of both the Registration Statement and any amendment thereto and the Final Prospectus (exclusive of and any supplement thereto, for the financial statements, notes thereto and other financial information (including without limitation, the pro forma financial information) and schedules contained therein, as to which such counsel need express no opinion), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and;
(ivix) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given all descriptions in the Registration Statement (exclusive and the Prospectus, and any amendment or supplement thereto, of contracts and other agreements to which the Company or its Subsidiaries is a party are accurate and fairly present in all material respects the information required to be shown, and such counsel is familiar with all contracts and other agreements referred to in the Registration Statement and the Prospectus and any such amendment or supplement or filed as exhibits to the Registration Statement, and such counsel does not know of any amendment thereof)contracts or agreements to which the Company or its Subsidiaries is a party of a character required to be summarized or described therein or to be filed as exhibits thereto which are not so summarized, the Disclosure Package described or filed;
(exclusive x) no authorization, approval, consent, or license of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, governmental or any development involving a prospective change, regulatory authority or agency is necessary in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed connection with the offering authorization, issuance, transfer, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive Company, in connection with the execution, delivery and performance of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued this Agreement by or guaranteed by either the Company or in connection with the Guarantor by taking of any “nationally recognized statistical rating organization” (as defined for purposes action contemplated herein, or the issuance of Rule 436(g) the Purchase Option or the Securities underlying the Purchase Option, other than registrations or qualifications of the Securities under applicable state or foreign securities or Blue Sky laws and registration under the Act; and
(xi) the Units, shares of Common Stock and the Warrants have been duly authorized for quotation on the NASDAQ SmallCap Market System ("NASDAQ"). Such opinion shall also cover such matters incident to the transactions contemplated hereby as the Underwriter or any notice given counsel for the Underwriter shall reasonably request. In rendering such opinion, such counsel may rely upon certificates of any intended officer of the Company or potential decrease in any such rating public officials as to matters of fact; and may rely as to all matters of law other than the law of the United States or of a possible change the State of New York or Delaware upon opinions of counsel satisfactory to you, in any such rating which case the opinion shall state that does they have no reason to believe that you and they are not indicate the direction of the possible changeentitled to so rely.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations -------------------------------------- of the Underwriters to purchase Securities pursuant to and pay for the Terms Agreement are Notes on the Issuance Date shall be subject to the accuracy in all material respects of the respective representations and warranties on the part of each of the Company Issuer, the Seller and IOS Capital herein, in the Guarantor herein contained, to Assignment and Servicing Agreement and in the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofIndenture, to the performance by each the Issuer, the Seller and IOS Capital in all material respects of their respective obligations hereunder, under the Company Assignment and Servicing Agreement and under the Guarantor of all of its respective covenants and other obligations hereunder Indenture and to the following further additional conditions:
(a) The Company Issuer, the Seller and the Guarantor IOS Capital shall each have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
delivered a certificate (b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of youan "Officer's Certificate"), dated respectively as of the Execution Time and as of the Closing Issuance Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Dateits Vice President and its Chief Financial Officer, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of made by the Company Issuer, the Seller or IOS Capital (as the case may be) in this Agreement, the Indenture and the Assignment and Servicing Agreement are true and correct in all material respects at and as of the date of such Officer's Certificate as if made on and as of such date (except to the Closing Date with extent they expressly relate to an earlier date);
(ii) the same effect Issuer, the Seller or IOS Capital (as if made on the Closing Date and the Company case may be) has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement, the Indenture and the Assignment and Servicing Agreement at or prior to the Closing Datedate of such Officer's Certificate;
(iii) nothing has come to such officer's attention that would lead him to believe that the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) such officer is not aware of (A) any request of the Commission for further amendment of the Registration Statement or the Final Prospectus for any additional information, (B) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceeding for that purpose or (C) any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the threatening of any proceeding for that purpose.
(b) You shall have received a favorable opinion from [Xxx Xxx, Esq.] (subject to customary and usual qualifications), dated the Issuance Date and reasonably satisfactory in form and substance to the Underwriters and their counsel with respect to or to the effect that: (i) the existence and good standing of IOS Capital, (ii) that the Issuer, the Seller and IOS Capital, as applicable, have the corporate authority to perform this Agreement, the Assignment and Servicing Agreement, the Indenture [and the Insurance Agreement] (collectively, the "Transaction Documents") and the transactions contemplated herein and therein; (iii) the due authorization, execution, delivery and enforceability of this Agreement and the other Transaction Documents, as applicable, by the Issuer, the Seller and IOS Capital; (iv) each of this Agreement and the other Transaction Documents are the legal, valid and binding obligation of the Issuer, the Seller and IOS Capital, as applicable, enforceable against each of them in accordance with its terms (subject to customary exceptions relating to bankruptcy and laws affecting creditors' rights); (v) the Notes have been duly authorized, executed and delivered by the Issuer and constitute the legal, valid and binding obligations of the Issuer enforceable in accordance with their terms (subject to customary exceptions as to bankruptcy and laws affecting creditors' rights) and are entitled to the benefits of the Indenture; (vi) the issuance and sale of the Notes by the Issuer, the performance of this Agreement by the Issuer, the Seller and IOS Capital and compliance by the Issuer, the Seller and IOS Capital with the terms of the Transaction Documents, as applicable, and the consummation of the transactions contemplated herein and therein will not conflict with the organizational documents of the Issuer, the Seller or IOS Capital, or to the best of such counsel's knowledge, any other contract to which the Issuer, the Seller or IOS Capital is a party or by which any of them is bound; (vii) to the best of such counsel's knowledge, there is no legal or governmental proceeding threatened or pending against the Issuer, the Seller or IOS Capital which would have a material adverse effect on the issuance of the Notes, the performance by the Issuer, the Seller or IOS Capital of this Agreement or compliance by the Issuer, the Seller or IOS Capital with the terms of the Transaction Documents to which they are parties, respectively; and (viii) on the Issuance Date the Registration Statement is effective, and, that to the best of such counsel's knowledge no stop order suspending the effectiveness of the Registration Statement has been issued or is threatened, and no proceedings for that purpose although such counsel is not passing on the factual accuracy, completeness or under Section 8A fairness of the Act have been instituted orstatements contained in the sections entitled "The Issuer", "The Servicer and the Originator" and "The Asset Pool" in the Prospectus Supplement and "The Issuer", "The Asset Pools", "Management's Discussion and Analysis of Financial Condition", "Directors and Executive Officers of the Manager of the Issuer", "The Leases" and "The Originator's Leasing Business" in the Base Prospectus nothing came to such counsel's attention that leads such counsel to believe that any of such sections (as of the Company’s knowledge, threatened; and
(iii) since Effective Date or the date of the most recent financial Final Prospectus) 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 included or incorporated by reference therein, in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties light of the Companycircumstances under which they were made not misleading (in each case other than the financial and statistical information and notes and schedules thereto, except as set forth in or contemplated in to which such counsel need express no opinion). In rendering such opinion, counsel may rely, to the Disclosure Package extent deemed proper and the Final Prospectus (exclusive as stated therein, as to matters of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive fact on certificates of responsible officers of the Guarantor with specific knowledge of Issuer, the financial Seller or IOS Capital and public officials and as to matters of state law of jurisdictions other than the Guarantorjurisdictions in which such counsel is admitted to practice, reasonably on opinions of local counsel satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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 changeUnderwriters.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Ikon Receivables Funding LLC)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters to purchase Securities pursuant to the Terms Agreement are subject to the accuracy of the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s executive officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) The Company and the Guarantor shall have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Vale S.A.)
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters to purchase the Securities pursuant to the Terms under this Agreement are is subject to the accuracy of the representations and warranties on the part satisfaction of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) All the representations and warranties of the Issuers contained in this Agreement shall be true and correct as of the Time of Sale and on the Closing Date with the same force and effect as if made on and as of the Time of Sale and on and as of the Closing Date. The Company and the Guarantor Issuers shall have requested performed or complied with all of their agreements herein contained and caused required to be performed or complied with by them at or prior to the delivery of written opinions, substantially in the forms contemplated by the Terms AgreementClosing Date.
(bi) The Guarantor No stop order suspending the effectiveness of the Registration Statement shall have requested been issued and caused PricewaterhouseCoopersno proceedings for that purpose or pursuant to Section 8A of the Act against the Company in connection with the offering of the Securities shall have been commenced or shall be pending before or threatened by the Commission, independent auditors (ii) every request for additional information on the part of the Commission shall have been complied with in all material respects and (iii) no stop order suspending the sale of the Securities in any jurisdiction referred to in Section 6(h) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened which would, in your reasonable judgment, make it impracticable or inadvisable to proceed with the public offering or delivery of the Securities or to enforce contracts for the Guarantor, sale of the Securities.
(c) Subsequent to the execution and such other independent auditors as may be specified in the Terms Agreement, delivery of this Agreement and prior to have furnished to you, at the Execution Time and at the Closing Date, there shall not have been 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 any Issuer’s debt by any “nationally recognized statistical rating organization,” as such term is defined in Section (3)(a)(62) of the Exchange Act.
(i) Since the date of the latest balance sheet included in the Registration Statement, the Time of Sale Information and the Prospectus there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, affairs or business prospects, whether or not arising in the ordinary course of business, of the Company and its subsidiaries taken as a whole, (ii) since the date of the latest balance sheet included in the Registration Statement, the Time of Sale Information and the Prospectus there shall not have been any material change in the capital stock or in the long-term debt of the Company or any of its subsidiaries from that set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus and (iii) the Company and its subsidiaries shall have no liability or obligation, direct or contingent, which is material to the Company and its subsidiaries, taken as a whole, other than those set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(e) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, signed by (i) Xxxxxx X. Xxxxxx or Xxxxx Xxxx and (ii) Xxxx X. Xxxxx or Xxxxxx X. Xxxxxx in their capacities as (A) the Chairman of the Board or Chief Executive Officer and President and (B) Chief Financial Officer or Treasurer of the Company, respectively, confirming the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 8.
(f) The Underwriters shall have received on the Closing Date letters (which may refer satisfactory to letters previously delivered to one or more of youyou and counsel for the Underwriters), dated respectively the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, in the form previously agreed between such counsel and counsel for the Underwriters.
(g) The Underwriters shall have received on the Closing Date letters, dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, in form and substance satisfactory to the Underwriters.
(h) The Underwriters shall have received letters on and as of the Execution Time date of this Agreement and as of the Closing Date, in form and substance satisfactory to you, confirming that they are from each of PricewaterhouseCoopers LLP and Ernst & Young LLP, each an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance firm, with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished respect to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined statements and certain financial information contained in the Registration Statement, the Disclosure Package, Time of Sale Information (including the Final Prospectus and any supplements or amendments thereto, Preliminary Prospectus) and the Terms Agreement and that:Prospectus.
(i) the representations and warranties of Neither the Company in the Agreement are true and correct on and as nor any of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act subsidiaries shall have been instituted or, to the Company’s knowledge, threatened; and
(iii) sustained since the date of the most recent latest audited financial statements included or incorporated by reference in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto)loss or interference with its business from fire, there has been no material adverse effect on the condition (financial explosion, flood or otherwise)other calamity, prospectswhether or not covered by insurance, earningsor from any labor dispute or court or governmental action, business order or properties of the Companydecree, except otherwise than as set forth in or contemplated in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the such date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock, net revenues, per share or total amounts of income before extraordinary items or of net income or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (general affairs, management, financial position, stockholders’ equity or otherwise), earnings, business or properties results of operations of the Guarantor Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except otherwise than as set forth in or contemplated in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto) Prospectus, the effect of which which, in any such case described in clause (i) or (ii), is, in your sole judgmentthe judgment of the Representatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the public offering or the delivery of the Securities as being delivered on the Closing Date on the terms and in the manner contemplated by in the Registration Statement (exclusive Time of any amendment thereof) Sale Information and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(fj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor The Issuers shall have furnished to you such other documents and certificates as to the Underwriters accuracy and completeness of any statement in the Registration Statement, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus as you reasonably may request.
(k) You shall have been furnished with such further information, additional documents and certificates and documents as you or counsel for the Underwriters may reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to you and your counsel. Any certificate or document signed by any officer of the Issuers and delivered to you or to your counsel shall be deemed a representation and warranty by the Issuers to the Underwriters as to the statements made therein.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase Securities pursuant and pay for the Units which it has agreed to the Terms Agreement purchase hereunder, are subject to the accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofherein, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder hereunder, and to the following further conditions:
(a) The Company and the Guarantor Registration Statement shall have requested become effective and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor you shall have requested and caused PricewaterhouseCoopersreceived notice thereof not later than 10:00 A.M., independent auditors for New York time, on the Guarantor, and such other independent auditors as may be specified in day following the Terms date of this Agreement, or at such later time or on such later date as to have furnished to you, at the Execution Time and at the Closing Date, letters (which you may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, agree in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct writing; on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) Dates no stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings for that or a similar purpose or under Section 8A of the Act shall have been instituted or shall be pending or, to your knowledge or to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties knowledge of the Company, except as set forth shall be contemplated by the Commission; any request on the part of the Commission for additional information shall have been complied with to the satisfaction of the Commission; and no stop order shall be in effect denying or contemplated suspending effectiveness of such qualification nor shall any stop order proceedings with respect thereto be instituted or pending or threatened. If required, the Prospectus shall have been filed with the Commission in the Disclosure Package manner and within the Final Prospectus (exclusive of any supplement thereto)time period required by Rule 424(b) under the Act.
(db) The Guarantor At the First Closing Date, you shall have furnished to you a certificatereceived the opinion, signed by two executive officers dated as of the Guarantor with specific knowledge First Closing Date, of Singer Xxxxxxxx LLP, counsel for the financial matters of the GuarantorCompany, reasonably in form and substance satisfactory to you, dated counsel for the Closing DateUnderwriter, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations Company and warranties its Subsidiaries have been duly incorporated and are validly existing as corporations in good standing under the laws of the Guarantor their respective jurisdictions of organization, with all requisite corporate power and authority to own their properties and conduct their business as described in the Agreement Registration Statement and Prospectus and are true duly qualified or licensed to do business as foreign corporations and correct on and as are in good standing in each other jurisdiction in which the ownership or leasing of their properties or conduct of their business requires such qualification except where the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part failure to qualify or be performed or satisfied at or prior to the Closing Datelicensed will not have a Material Adverse Effect;
(ii) the authorized capitalization of the Company as of _______, 1997 is as set forth in the Registration Statement; the Securities as set forth in the Registration Statement have been duly authorized and upon payment of consideration therefor, will be validly issued, fully paid and non-assessable and conform in all material respects to the description thereof contained in the Prospectus; to such counsel's knowledge the outstanding shares of capital stock of the Company and its Subsidiaries have not been issued in violation of the preemptive rights of any shareholder and to such counsel's knowledge the shareholders of the Company do not have any preemptive rights or other rights to subscribe for or to purchase, nor are there any restrictions upon the voting or transfer of any of the capital stock except as provided in the Prospectus or as required by law. The Securities, the Purchase Option and the Warrant Agreement conform in all material respects to the respective descriptions thereof contained in the Prospectus; the shares of Common Stock, and the shares of Common Stock issuable upon exercise of Warrants, the Purchase Option, and the Warrant Agreement will have been duly authorized and, when issued and delivered in accordance with their respective terms, will be duly and validly issued, fully paid, non-assessable, free of preemptive rights to the best of their knowledge; to the best of their knowledge, all prior sales by the Company of the Company's securities, have been made in compliance with or under an exemption from registration under the Act and applicable state securities laws; a sufficient number of shares of Common Stock has been reserved for issuance upon exercise of the Warrants and Common Stock has been reserved for issuance upon exercise of the Warrants contained in the Purchase Option and to the best of such counsel's knowledge, neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any registration rights other than those which have been waived or satisfied for or relating to the registration of any shares of Common Stock;
(iii) this Agreement, the Purchase Option, and the Warrant Agreement have been duly and validly authorized, executed and delivered by the Company;
(iv) the certificates evidencing the Securities as described in the Registration Statement comply in all material respects with the descriptions set forth therein, and comply with the Delaware General Corporation Law, as in effect on the date hereof; each Warrant will be exercisable for one share of the Common Stock of the Company, respectively, and at the prices provided for in the Warrant Agreement;
(v) except as otherwise disclosed in the Registration Statement, such counsel knows of no pending or threatened legal or governmental proceedings to which the Company or its Subsidiaries are a party which would materially adversely affect the business, property, financial condition or operations of the Company or its Subsidiaries; or which question the validity of the Securities, this Agreement, the Warrant Agreement or the Purchase Option, or of any action taken or to be taken by the Company pursuant to this Agreement, the Warrant Agreement or the Purchase Option; to such counsel's knowledge there are no governmental proceedings or regulations required to be described or referred to in the Registration Statement which are not so described or referred to;
(vi) the execution and delivery of this Agreement, the Purchase Option or the Warrant Agreement and the incurrence of the obligations herein and therein set forth and the consummation of the transactions herein or therein contemplated, will not result in a breach or violation of, or constitute a default under the certificate of incorporation or by-laws of the Company or its Subsidiaries, or to the best knowledge of counsel after due inquiry, in the performance or observance of any material obligations, agreement, covenant or condition contained in any bond, debenture, note or other evidence of indebtedness or in any material contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to which the Company or its Subsidiaries is a party or by which they or any of their properties is bound or in violation of any order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign the result of which would have a Material Adverse Effect;
(vii) the Registration Statement has become effective under the Act, and to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued is in effect, and no proceedings for that purpose have been instituted or under Section 8A are pending before, or threatened by, the Commission; the Registration Statement and the Prospectus (except for the financial statements and other financial data contained therein, or omitted therefrom, as to which such counsel need express no opinion) as of the Effective Date comply as to form in all material respects with the applicable requirements of the Act have been instituted or, to and the Guarantor’s knowledge, threatenedRules and Regulations;
(iiiviii) since in the date course of preparation of the most recent financial Registration Statement and the Prospectus such counsel has participated in conferences with the President of the Company with respect to the Registration Statement and Prospectus and such discussions did not disclose to such counsel any information which gives such counsel reason to believe that the Registration Statement or any amendment thereto at the time it became effective contained any untrue statement of a material fact required to be stated therein or omitted to state any material fact required to be stated therein or necessary to make the statements included therein not misleading or incorporated by reference that the Prospectus or any supplement thereto contains any untrue statement of a material fact or omits to state a material fact necessary in order to make statements therein, in light of the circumstances under which they were made, not misleading (except, in the Disclosure Package case of both the Registration Statement and any amendment thereto and the Final Prospectus (exclusive of and any supplement thereto, for the financial statements, notes thereto and other financial information (including without limitation, the pro forma financial information) and schedules contained therein, as to which such counsel need express no opinion), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and;
(ivix) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given all descriptions in the Registration Statement (exclusive and the Prospectus, and any amendment or supplement thereto, of contracts and other agreements to which the Company or its Subsidiaries is a party are accurate and fairly present in all material respects the information required to be shown, and such counsel is familiar with all contracts and other agreements referred to in the Registration Statement and the Prospectus and any such amendment or supplement or filed as exhibits to the Registration Statement, and such counsel does not know of any amendment thereof)contracts or agreements to which the Company or its Subsidiaries is a party of a character required to be summarized or described therein or to be filed as exhibits thereto which are not so summarized, the Disclosure Package described or filed;
(exclusive x) no authorization, approval, consent, or license of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, governmental or any development involving a prospective change, regulatory authority or agency is necessary in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed connection with the offering authorization, issuance, transfer, sale or delivery of the Securities as contemplated by the Registration Statement (exclusive Company, in connection with the execution, delivery and performance of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued this Agreement by or guaranteed by either the Company or in connection with the Guarantor by taking of any “nationally recognized statistical rating organization” (as defined for purposes action contemplated herein, or the issuance of Rule 436(g) the Purchase Option or the Securities underlying the Purchase Option, other than registrations or qualifications of the Securities under applicable state or foreign securities or Blue Sky laws and registration under the Act; and
(xi) the Units, shares of Common Stock and the Warrants have been duly authorized for quotation on the Nasdaq SmallCap System ("Nasdaq"). Such opinion shall also cover such matters incident to the transactions contemplated hereby as the Underwriter or any notice given counsel for the Underwriter shall reasonably request. In rendering such opinion, such counsel may rely upon certificates of any intended officer of the Company or potential decrease in any such rating public officials as to matters of fact; and may rely as to all matters of law other than the law of the United States or of a possible change the State of New York or Delaware upon opinions of counsel satisfactory to you, in any such rating which case the opinion shall state that does they have no reason to believe that you and they are not indicate the direction of the possible changeentitled to so rely.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (All Communications Corp/Nj)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters to purchase Securities pursuant to the Terms Agreement are subject subject, in the discretion of the Representatives, to the accuracy of the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s executive officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) The Company and the Guarantor shall have requested and caused the delivery on the Closing Date of the following written opinions, substantially which shall be in form and substance reasonably satisfactory to you:
(i) Opinion and 10b-5 negative assurance letter of Xxxxxx Xxxx Davoli xx Xxxxxx, Esq., Associate General Counsel of the forms contemplated by Company, in form and substance satisfactory to the Terms AgreementUnderwriters; and
(ii) Opinion and 10b-5 negative assurance letter of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, U.S. counsel to the Company, in form and substance satisfactory to the Underwriters.
(b) The Guarantor Representatives shall have received on the Closing Date the following written opinions, which shall cover customary matters and shall be reasonably satisfactory to you:
(i) Opinion and 10b-5 negative assurance letter of Bocater, Camargo, Costa e Xxxxx – Advogados, Brazilian counsel to the Underwriters; and
(ii) Opinion and 10b-5 negative assurance letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, U.S. counsel to the Underwriters.
(c) The Company shall have requested and caused PricewaterhouseCoopersPricewaterhouseCoopers Auditores Independentes, independent auditors registered public accounting firm for the GuarantorCompany, and such other independent auditors registered public accounting firms as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, which shall be in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letterscomfort” drafted letters prepared in accordance with Statement of Accounting Standards No. 72.
(cd) The Company shall have furnished to you a certificate, signed by two directors executive officers of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Securities Act have been instituted or, to the Company’s knowledge, threatened; and
(iiiand no notice pursuant to Rule 401(g)(2) since the date objecting to use of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there automatic shelf registration statement form has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatenedreceived;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on change, or any development involving a material adverse change, in or affecting the condition (business, properties, management, financial position, shareholders’ equity or otherwise), prospects, earnings, business or properties results of operations of the Guarantor Company and its subsidiariesSubsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (business, properties, management, financial position, shareholders’ equity or otherwise), earnings, business or properties results of operations of the Guarantor Company and its subsidiariesSubsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities 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.
(g) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities.
(h) The Company shall have applied to list the Securities on the New York Stock Exchange.
(i) The Securities shall be eligible for clearance and settlement through DTC.
(j) Prior to or on the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further informationcertificates, certificates documents and documents information as the Underwriters may reasonably request. All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the Underwriters to purchase Securities pursuant to and pay for the Terms Agreement are Offered Notes on the Issuance Date shall be subject to the accuracy in all material respects of the representations and warranties on the part of each of the Company Issuer and Copelco herein, in the Guarantor herein contained, to Sales and Servicing Agreement and in the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofIndenture, to the performance by each the Issuer and Copelco in all material respects of the Company and the Guarantor of all of its respective covenants and other their obligations hereunder and to the following further additional conditions:
(a) The Company Issuer and the Guarantor Copelco shall each have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
delivered a certificate (b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of youan "Officer's Certificate"), dated respectively as of the Execution Time and as of the Closing Issuance Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Dateits President and its Chief Financial Officer, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of made by the Company Issuer or Copelco (as the case may be) in this Agreement, the Indenture and the Sales and Servicing Agreement are true and correct in all material respects at and as of the date of such Officer's Certificate as if made on and as of such date (except to the Closing Date with extent they expressly relate to an earlier date);
(ii) the same effect Issuer or Copelco (as if made on the Closing Date and the Company case may be) has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement, the Indenture and the Sales and Servicing Agreement at or prior to the Closing Datedate of such Officer's Certificate;
(iii) nothing has come to such officer's attention that would lead him to believe that the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) such officer is not aware of (A) any request of the Commission for further amendment of the Registration Statement or the Final Prospectus for any additional information, (B) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceeding for that purpose or (C) any notification with respect to the suspension of the qualification of the Offered Notes for sale in any jurisdiction or the threatening of any proceeding for that purpose.
(b) You shall have received from Xxxxxxx X. Xxxxxxx, Esq., a favorable opinion (subject to customary and usual qualifications), dated the Issuance Date and reasonably satisfactory in form and substance to the Underwriters and their counsel with respect to, or to the effect that: (i) the due formation and qualification of each of the Issuer and Copelco and that the Issuer and Copelco, as applicable, have the corporate power and authority to perform this Agreement, the Sales and Servicing Agreement, the Indenture and the Placement Agreement (the "Transaction Documents") and the transactions contemplated herein and therein; (ii) the due authorization, execution, delivery and enforceability of this Agreement and the other Transaction Documents as applicable, by the Issuer and Copelco; (iii) each of this Agreement and the other Transaction Documents are the legal, valid and binding obligation of the Issuer and Copelco, as applicable, enforceable against each of them in accordance with its terms (subject to customary exceptions relating to bankruptcy and laws affecting creditors' rights); (iv) the Notes have been duly authorized, executed and delivered by the Issuer and constitute the legal, valid and binding obligations of the Issuer, enforceable in accordance with their terms (subject to customary exceptions as to bankruptcy and laws affecting creditors' rights) and are entitled to the benefits of the Indenture; (v) the issuance and sale of the Notes by the Issuer, the performance of this Agreement by the Issuer and Copelco and the compliance by the Issuer and Copelco with the terms of the Transaction Documents, as applicable, and the consummation of the transactions contemplated herein and therein will not conflict with the organizational documents of the Issuer or Copelco, or to the best of such counsel's knowledge, any other contracts to which the Issuer or Copelco is a party or by which either of them is bound; (vi) to the best of such counsel's knowledge, there is no legal or governmental proceeding threatened or pending against the Issuer or Copelco which would have a material adverse effect on the issuance of the Notes; (vii) in the event a court disregarded the intent of the parties and characterized the transfers as a pledge of collateral, the Sales and Servicing Agreement and accompanying documentation creates a valid security interest in the Leases and the Equipment (or interests therein) under New Jersey law; (viii) assuming no prior financing statements covering the Leases are in effect based on a review of certain UCC searches, that financing statements covering the Leases and naming (A) the Issuer as secured party and Copelco as debtor and (B) the Issuer as debtor and the Trustee as secured party are being filed in the appropriate filing offices of the State of New Jersey, and assuming that the Trustee has taken possession of the Leases, the Trustee has a first priority perfected security interest in all right, title and interest of Copelco and the Issuer in the Leases; and (ix) on the Issuance Date the Registration Statement is effective, and, that to the best of such counsel's knowledge no stop order suspending the effectiveness of the Registration Statement has been issued or is threatened, and no proceedings for that purpose although such counsel is not passing on the factual accuracy, completeness or under Section 8A fairness of the Act have been instituted orstatements contained in the Registration Statement and the Prospectus, nothing came to such counsel's attention that leads such counsel to believe that either the Company’s knowledge, threatened; and
Registration Statement or the Prospectus (iii) since as of the Effective Date or the date of the most recent financial Prospectus) 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 included therein, in light of the circumstances under which they were made not misleading. In rendering such opinion, counsel may rely, to the extent deemed proper and as stated therein, as to matters of fact on certificates of responsible officers of the Issuer or incorporated by reference Copelco and public officials and as to matters of state law of jurisdictions other than the jurisdictions in which such counsel is admitted to practice, on opinions of local counsel satisfactory to the Disclosure Package and Underwriters.
(c) The Underwriters shall have received from Xxxxx Xxxxxxxxxx, special counsel for the Underwriters, such opinion or opinions, dated the Issuance Date, with respect to the validity of the Offered Notes, the Registration Statement, the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse effect on true sale, nonconsolidation and other related matters as the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Underwriters may require.
(d) The Guarantor At the Execution Time and at the Issuance Date, KMPG-Peat Marwick shall have furnished to you the Underwriters a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to youletter or letters, dated the Closing date of this Agreement and the Issuance Date, respectively, in form and substance satisfactory to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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 changeUnderwriters.
(e) Subsequent to the Execution Time or, if earlierThe Class A Notes shall have been rated at least _____, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) Class B Notes shall have been rated at least _____ and the Final Prospectus (exclusive of any supplement thereto)Class C Notes have been rated at least _____, there by at least one nationally recognized rating agency, which ratings shall not have been any change, reduced or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken withdrawn as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated evidenced by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement theretoOfficer's Certificate referred to in Section 6(b).
(f) Subsequent Counsel to the Execution TimeTrustee shall have delivered a favorable opinion (subject to customary and usual exceptions), there shall not have been any decrease dated the Issuance Date, as the case may be, and satisfactory in form and substance to the rating of any Underwriters and counsel for the Underwriters and to the Issuer and Copelco and their counsel with respect to, or to the effect that: (i) the due incorporation and valid existence of the debt securities issued Trustee, (ii) the due authorization, execution and delivery by the Trustee of the Indenture, (iii) the Indenture is the legal, valid and bending obligation of the Trustee, enforceable against the Trustee in accordance with its terms (subject to customary and usual exceptions), (iv) no approvals or guaranteed filings with any Governmental Authority required in connection with the execution, delivery or performance by either the Company or Trustee of the Guarantor by Indenture and (v) the execution, delivery and performance of the Indenture will not cause any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) default under the Act) Trustee's organizational documents or any notice given of any intended other contracts to which it is a party 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 changeby which it is bound.
(g) Prior The Underwriters shall have received the approval of each of their respective investment committees with respect to the Closing Dateexecution, delivery and performance of this Agreement.
(h) All proceedings in connection with the Company transactions contemplated by this Agreement and the Guarantor all documents incident hereto shall be reasonably satisfactory in form and substance to you, and you and your special counsel shall have furnished to the Underwriters received such further other information, certificates and documents as the Underwriters you or they may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Copelco Capital Funding Corp X)
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters to purchase Securities pursuant to and pay for the Terms Agreement are Class B Certificates on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of each of the Company Bank contained herein as of the Execution Time and the Guarantor herein containedClosing Date, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers Bank made in any certificate furnished certificates delivered pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all Bank of its respective covenants and other obligations hereunder and to the following further additional conditions:
(a) The Company and If the Guarantor Registration Statement has not become effective prior to the Execution Time, unless the Underwriters shall agree in writing to a later time, the Registration Statement shall have requested become effective not later than (i) 6:00 p.m. New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 p.m. New York City time on such date or (ii) 12:00 noon on the business day following the day on which the public offering price was determined, if such determination occurred after 3:00 p.m. New York City time on such date; if filing of the Prospectus, or any supplements thereto, is required pursuant to Rule 424(b), the Prospectus, and caused the delivery of written opinionsany supplements thereto, substantially shall have been filed in the forms contemplated manner and within the time period required by Rule 424(b); and no stop order suspending the Terms Agreementeffectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Guarantor Bank shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you Underwriters a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, signed by its Chairman of the Board, President, Vice Chairman of the Board, Executive Vice President, Senior Vice President, Vice President, principal financial officer, principal accounting officer, treasurer or cashier to the effect that the signers signer of such certificate have has carefully examined the Registration StatementUnderwriting Agreements, the Disclosure PackagePooling and Servicing Agreement, the Final Loan Agreement, the Prospectus (and any supplements or amendments thereto, ) and the Terms Agreement Registration Statement and that:
(i) the representations and warranties of the Company Bank in the this Agreement are true and correct at and as of the Closing Date as if made on and as of the Closing Date with (except to the same effect extent they expressly relate to an earlier date, in which case the representations and warranties of the Bank are true and correct as if made on of such earlier date);
(ii) the Closing Date and the Company Bank has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement at or prior to the Closing Date;
(iiiii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Company’s knowledgeknowledge of the signer, threatened; and
(iiiiv) since the date of the most recent financial statements included or incorporated by reference in of the Disclosure Package and Bank delivered to the Final Prospectus (exclusive of any supplement thereto)Underwriters pursuant to Section 1(g) hereof, there has been no material adverse effect on change in the condition (financial or otherwise), prospects, earnings, business or properties ) of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, Bank whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Registration Statement and the Final Prospectus Prospectus.
(exclusive c) The Underwriters shall have received from Xxxxxx X. Xxxxxxx, Senior Vice President and General Counsel of any supplement theretoUCS, a favorable opinion dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel to the Underwriters, to the effect that:
(i) UCS has been duly organized as a corporation and is validly existing and in good standing under the laws of the State of Delaware, is duly qualified to do business and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, and has full corporate power and authority to own its properties, to conduct its business as described in the Registration Statement and the Prospectus, to enter into and perform its obligations under the Underwriting Agreements, the Loan Agreement, the Depository Agreement and the Pooling and Servicing Agreement and to perform its obligations and transactions contemplated hereby and thereby;
(ii) the effect Pooling and Servicing Agreement, the Loan Agreement, the Depository Agreement, the Underwriting Agreements and the Certificates have each been duly authorized, executed and delivered by the Bank;
(iii) neither the execution nor the delivery of which isthe Underwriting Agreements, in your sole judgmentthe Pooling and Servicing Agreement, so material and adverse as to make it impractical the Loan Agreement or inadvisable to proceed with the offering Depository Agreement nor the issuance or delivery of the Securities as contemplated by Certificates, nor the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating consummation of any of the debt securities issued by transactions contemplated herein or guaranteed by either therein, nor the Company fulfillment of the terms of the Certificates, the Underwriting Agreements, the Pooling and Servicing Agreement, the Loan Agreement or the Guarantor Depository Agreement will conflict with or violate, result in a material breach of or constitute a default under (A) any term or provision of the charter or by-laws of UCS or the Bank or any statute or regulation currently applicable to UCS or the Bank, (B) any term or provision of any order known to such counsel to be currently applicable to UCS or the Bank of any court, regulatory body, administrative agency or governmental body having jurisdiction over UCS or the Bank, or (C) any term or provision of any indenture or other agreement or instrument known to such counsel to which UCS or the Bank is a party or by which UCS or any “nationally recognized statistical rating organization” of their properties are bound;
(iv) except as defined otherwise disclosed in the Prospectus (and any supplements thereto) or the Registration Statement, there is no pending or, to the best knowledge of such counsel, threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator with respect to the Trust, the Certificates, the Pooling and Servicing Agreement, the Underwriting Agreements, the Loan Agreement or the Depository Agreement or any of the transactions contemplated herein or therein or with respect to UCS or the Bank which, in the case of any such action, suit or proceeding with respect to UCS or the Bank if adversely determined, would have a material adverse effect on the Certificateholders or the Trust or upon the ability of UCS or the Bank to perform its obligations under the Pooling and Servicing Agreement.
(v) no approval, authorization, consent, order, registration, filing, qualification, license or permit of or with any court or governmental agency or body is required for purposes the execution and delivery by UCS or the Bank of Rule 436(gthe Certificates or any of the transactions contemplated in the Underwriting Agreements, the Pooling and Servicing Agreement, the Loan Agreement or the Depository Agreement, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction inside the United States in connection with the purchase and distribution of the Certificates by the Underwriters and the Class A Underwriters and such filings or other approvals (specified in such opinion) as have been made or obtained;
(d) The Underwriters shall have received from counsel to the Bank, a favorable opinion dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel to the Underwriters, to the effect that:
(i) the Pooling and Servicing Agreement and the Loan Agreement have each been duly authorized, executed and delivered by the Bank and each constitutes the legal, valid and binding agreement of the Bank enforceable in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws affecting creditors' rights generally from time to time in effect and to the application of general principles of equity);
(ii) the Underwriting Agreements have been duly authorized, executed and delivered by the Bank;
(iii) the Certificates have been duly authorized and, when executed and authenticated in accordance with the terms of the Pooling and Servicing Agreement and in the case of the Class B Certificates delivered to and paid for by the Underwriters pursuant to this Agreement, and, in the case of the Class A Certificates, delivered to and paid for by the Class A Underwriters pursuant to the Class A Underwriting Agreement, will be validly issued and outstanding, enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws affecting creditors' rights generally from time to time in effect and to the application of general principles of equity) and will be entitled to the benefits of the Pooling and Servicing Agreement;
(iv) neither the execution nor the delivery of the Underwriting Agreements, the Pooling and Servicing Agreement, the Loan Agreement or the Depository Agreement nor the issuance or delivery of the Certificates, nor the consummation of any of the transactions contemplated herein or therein, nor the fulfillment of the terms of the Certificates, the Underwriting Agreements, the Pooling and Servicing Agreement, the Loan Agreement or the Depository Agreement will conflict with or violate, result in a material breach of or constitute a default under any Federal or New York statute or regulation currently applicable to the Trust;
(v) no approval, authorization, consent, order, registration, filing, qualification, license or permit of or with any Federal or New York court or governmental body or agency is required for the consummation by the Trust of the transactions contemplated in the Underwriting Agreements, the Pooling and Servicing Agreement, the Depository Agreement or the Loan Agreement or in connection with the issuance of the Certificates, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction inside the United States in connection with the purchase and distribution of the Class B Certificates by the Underwriters and the Class A Underwriters and such filings or approvals as have been made and obtained;
(vi) the Registration Statement has become effective under the Act) ; any required filing of the Prospectus or any notice given supplements thereto pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); 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 threatened; the Registration Statement and the Prospectus (and any supplements thereto) (other than financial and statistical information contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules thereunder;
(vii) the Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended. The Trust is not now, and following the sale of the Certificates to the Underwriters and the Class A Underwriters will not be, required to be registered under the Investment Company Act of 1940, as amended;
(viii) such counsel has no reason to believe that at the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (and any supplements thereto) includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (other than financial and statistical information contained therein as to which such counsel need express no opinion);
(ix) the Certificates, the Underwriting Agreements, the Loan Agreement and the Pooling and Servicing Agreement conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus (and any supplements thereto); and
(x) the statements in the Registration Statement under the heading "Certain Legal Aspects of the Receivables" (other than "Consumer Protection Laws") to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, are correct in all material respects. In rendering such opinion counsel may rely (A) as to clauses (i), (ii) and (xi) of this paragraph (d), insofar as they relate to the Bank, on the opinion of Xxxxxx X. Xxxxxxx, General Counsel of UCS, (B) as to matters involving the application of laws other than the General Corporation Law of the State of Delaware or laws of any intended or potential decrease jurisdiction other than the State of New York and the United States, to the extent deemed proper and stated in any such rating or opinion, upon the opinion of a possible change in any other counsel of good standing believed by such rating that does not indicate counsel to be reliable and acceptable to the direction Underwriters and counsel to the Underwriters, and (C) as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of the possible changeTrust, the Bank and public officials.
(ge) Prior The Underwriters shall have received from Cravath, Swaine & Xxxxx, (i) in its capacity as counsel to the Underwriters, a favorable opinion dated the Closing Date, the Company and the Guarantor shall have furnished with respect to the Underwriters issuance and sale of the Certificates, the Pooling and Servicing Agreement, the Registration Statement, the Prospectus and such further information, certificates and documents other related matters as the Underwriters may reasonably request.require; and (ii) in its capacity as special Federal tax and ERISA counsel for the Bank and the Trust, a favorable opinion dated the Closing Date, to the effect that the statements in the Registration Statement and the Basic Prospectus under the heading "Tax Matters" (other than "Limits of the Discussion") accurately describe the material Federal income tax consequences to holders of the Certificates, and the statements in the Registration Statement and the Basic Prospectus under the heading "Benefit plan investors", to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material consequences to holders of the Certificates under ERISA; and the Bank shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass on all such matters. In giving their opinion, Xxxxxxx, Xxxxxx & Xxxxx may rely (A) upon the opinions of counsel delivered pursuant to subsection (c) above, (B) as to matters involving the application of laws of any jurisdiction other than the State of New York, the United States or the General Corporation Law of the State of Delaware, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable, and (C) as to matters of fact, to the extent deemed proper and as stated therein on certificates of responsible officers of the Trust, the Bank, and public
Appears in 1 contract
Samples: Underwriting Agreement (Universal Card Services Corp)
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters to purchase the Securities pursuant to the Terms under this Agreement are is subject to the accuracy of the representations and warranties on the part satisfaction of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) All the representations and warranties of the Issuers contained in this Agreement shall be true and correct as of the Time of Sale and on the Closing Date with the same force and effect as if made on and as of the Time of Sale and on and as of the Closing Date. The Company and the Guarantor Issuers shall have requested performed or complied with all of their agreements herein contained and caused required to be performed or complied with by them at or prior to the delivery of written opinions, substantially in the forms contemplated by the Terms AgreementClosing Date.
(bi) The Guarantor No stop order suspending the effectiveness of the Registration Statement shall have requested been issued and caused PricewaterhouseCoopersno proceedings for that purpose or pursuant to Section 8A of the Act against the Company in connection with the offering of the Securities shall have been commenced or shall be pending before or threatened by the Commission, independent auditors (ii) every request for additional information on the part of the Commission shall have been complied with in all material respects and (iii) no stop order suspending the sale of the Securities in any jurisdiction referred to in Section 6(h) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened which would, in your reasonable judgment, make it impracticable or inadvisable to proceed with the public offering or delivery of the Securities or to enforce contracts for the Guarantor, sale of the Securities.
(c) Subsequent to the execution and such other independent auditors as may be specified in the Terms Agreement, delivery of this Agreement and prior to have furnished to you, at the Execution Time and at the Closing Date, there shall not have been 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 any Issuer’s debt by any “nationally recognized statistical rating organization,” as such term is defined in Section (3)(a)(62) of the Exchange Act.
(i) Since the date of the latest balance sheet included in the Registration Statement, the Time of Sale Information and the Prospectus there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, affairs or business prospects, whether or not arising in the ordinary course of business, of the Company and its subsidiaries taken as a whole, (ii) since the date of the latest balance sheet included in the Registration Statement, the Time of Sale Information and the Prospectus there shall not have been any material change in the capital stock or in the long-term debt of the Company or any of its subsidiaries from that set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus and (iii) the Company and its subsidiaries shall have no liability or obligation, direct or contingent, which is material to the Company and its subsidiaries, taken as a whole, other than those set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(e) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, signed by (i) Xxxxxx X. Xxxxxx or Xxxxx Xxxx and (ii) Xxxx X. Xxxxx or Xxxxxxx Xxxxxxx Xxxxxxx in their capacities as (A) the Chairman of the Board or Chief Executive Officer and President and (B) Chief Financial Officer or Treasurer of the Company, respectively, confirming the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 8.
(f) The Underwriters shall have received on the Closing Date letters (which may refer satisfactory to letters previously delivered to one or more of youyou and counsel for the Underwriters), dated respectively the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, in the form previously agreed between such counsel and counsel for the Underwriters.
(g) The Underwriters shall have received on the Closing Date letters, dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, in form and substance satisfactory to the Underwriters.
(h) The Underwriters shall have received letters on and as of the Execution Time date of this Agreement and as of the Closing Date, in form and substance satisfactory to you, confirming that they are from each of PricewaterhouseCoopers LLP and Ernst & Young LLP, an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance firm, with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished respect to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined statements and certain financial information contained in the Registration Statement, the Disclosure Package, Time of Sale Information (including the Final Prospectus and any supplements or amendments thereto, Preliminary Prospectus) and the Terms Agreement and that:Prospectus.
(i) the representations and warranties of Neither the Company in the Agreement are true and correct on and as nor any of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act subsidiaries shall have been instituted or, to the Company’s knowledge, threatened; and
(iii) sustained since the date of the most recent latest audited financial statements included or incorporated by reference in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto)loss or interference with its business from fire, there has been no material adverse effect on the condition (financial explosion, flood or otherwise)other calamity, prospectswhether or not covered by insurance, earningsor from any labor dispute or court or governmental action, business order or properties of the Companydecree, except otherwise than as set forth in or contemplated in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the such date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock, net revenues, per share or total amounts of income before extraordinary items or of net income or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (general affairs, management, financial position, stockholders’ equity or otherwise), earnings, business or properties results of operations of the Guarantor Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except otherwise than as set forth in or contemplated in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto) Prospectus, the effect of which which, in any such case described in clause (i) or (ii), is, in your sole judgmentthe judgment of the Representatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the public offering or the delivery of the Securities as being delivered on the Closing Date on the terms and in the manner contemplated by in the Registration Statement (exclusive Time of any amendment thereof) Sale Information and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(fj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor The Issuers shall have furnished to you such other documents and certificates as to the Underwriters accuracy and completeness of any statement in the Registration Statement, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus as you reasonably may request.
(k) You shall have been furnished with such further information, additional documents and certificates and documents as you or counsel for the Underwriters may reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to you and your counsel. Any certificate or document signed by any officer of the Issuers and delivered to you or to your counsel shall be deemed a representation and warranty by the Issuers to the Underwriters as to the statements made therein.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters Underwriter to purchase Securities pursuant to and pay for the Terms Agreement are Bonds shall be subject to the accuracy of of, and compliance with, the representations and warranties on the part of each of the Company Issuer and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofCompany contained herein, to the performance by each of the Issuer and the Company of their obligations to be performed hereunder at and prior to the Guarantor of all of its respective covenants and other obligations hereunder Closing Date, and to the following further conditions:
(a) The Company and the Guarantor shall have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time On and as of the Closing Date:
(i) The Indenture, the Loan Agreement, the Tax Agreement, the Continuing Disclosure Agreement, and this Bond Purchase Agreement shall be in full force and effect, this Bond Purchase Agreement shall not have been amended, modified or supplemented (except as may have been agreed to in writing by the Underwriter), and the Indenture, the Loan Agreement, the Tax Agreement, and the Continuing Disclosure Agreement shall have been duly authorized, executed and delivered in the respective forms heretofore approved by the Underwriter, except as otherwise approved by the Underwriter, provided that the acceptance of delivery of the Bonds by the Underwriter on the Closing Date shall be deemed to constitute such approval.
(ii) The Bonds shall have been duly authorized, executed and authenticated in accordance with the provisions of this Bond Purchase Agreement, the Indenture, the Loan Agreement and the Authorizing Resolution, and shall have been delivered through the facilities of DTC or its agent.
(iii) Each of the representations, warranties and covenants of the Issuer in the Indenture, the Loan Agreement, the Tax Agreement, and this Bond Purchase Agreement, and the Company in the Company Documents shall be true and accurate in all material respects as if then made (except for any representations, warranties and covenants that are expressly made as of a specific prior date).
(iv) The Issuer shall have duly adopted, and there shall be in full force and effect, the Authorizing Resolution.
(v) No order, decree or injunction of any court of competent jurisdiction shall have been issued, or proceedings therefor shall have been commenced, nor shall any order, ruling, regulation or official statement by any governmental official, body or board have been issued, nor shall any legislation have been enacted, with the purpose or effect of prohibiting or limiting the issuance, offering or sale of the Bonds, as contemplated herein or in the Limited Offering Memorandum, or the performance of this Bond Purchase Agreement, the Indenture, the Loan Agreement, the Tax Agreement or the Continuing Disclosure Agreement in accordance with their respective terms.
(vi) After the date hereof, up to and including the time of the Closing Date, there shall not have occurred any change in or particularly affecting the Company, the Issuer, or the Company Documents as the foregoing matters are described in the Limited Offering Memorandum, which in the reasonable professional judgment of the Underwriter materially impairs the investment quality of the Bonds.
(b) On the Closing Date, the Underwriter shall receive executed or counterpart copies of the following documents, certificates, opinions and letters, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning Underwriter and its counsel:
(i) Executed copies of the Act Indenture, the Tax Agreement, the Loan Agreement, and the Exchange Act Continuing Disclosure Agreement; and covering a certified copy of the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement Authorizing Resolution and all proceedings of Accounting Standards No. 72the Issuer relating thereto.
(cii) The Opinions, dated the Closing Date, of: (1) Xxxxxxxx, Xxxxx & Xxxxxx LLP, Bond Counsel to the Issuer, in substantially the form attached to the Preliminary Limited Offering Memorandum and the Limited Offering Memorandum as Appendix C thereto (together with a Supplemental Opinion of Bond Counsel addressed to the Underwriter and in substantially the form attached hereto as Exhibit B); (2) in-house counsel to the Company shall have furnished in substantially the form attached hereto as Exhibit C; (3) Xxxxxxxx, Xxxxx & Xxxxxx LLP, addressing certain matters of New Hampshire law, in substantially the form attached hereto as Exhibit D; (4) Squire Xxxxxx Xxxxx (US) LLP, counsel to you a certificatethe Underwriter, in substantially the form attached hereto as Exhibit E; and (5) Xxxxxxxx, Xxxxx & Xxxxxx LLP, special counsel to the Issuer, in form and substance reasonably satisfactory to the Underwriter.
(iii) A certificate of the Issuer, signed by two directors an authorized officer of the Company with specific knowledge of the financial matters of the Company, reasonably Issuer satisfactory to youthe Underwriter, dated the Closing Date, to the effect that to the signers actual knowledge of such certificate have carefully examined that officer, each of the Registration Statementrepresentations of the Issuer set forth herein is true, accurate and complete in all material respects at and as of the Disclosure PackageClosing Date, except to the Final Prospectus and any supplements or amendments theretoextent that they relate to a specific prior date, and that each of the Terms Agreement and that:obligations of the Issuer hereunder to be performed at or prior to the Closing Date has been performed.
(iiv) A certificate, dated the Closing Date, signed by an authorized officer of the Company satisfactory to the Underwriter, to the effect that: (1) the representations and warranties of the Company in the Agreement set forth herein are true and correct on accurate in all material respects at and as of the Closing Date with Date, except to the same effect as if made on extent that they relate to a specific prior date, (2) each of the Closing Date and obligations of the Company has complied with all the agreements and satisfied all the conditions on its part under this Bond Purchase Agreement to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act Date have been instituted orperformed in all material respects, to the Company’s knowledge, threatened; and
and (iii3) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement Limited Offering Memorandum, as it may have been amended or supplemented (exclusive including amendments or supplements resulting from the filing of any amendment thereof), the Disclosure Package (exclusive of any amendment thereofdocuments incorporated by reference) and up to the Final Prospectus (exclusive of any supplement thereto)Closing Date, there shall not have has been any changeno material adverse change in the business, properties or any development involving a prospective change, in or affecting the financial condition (financial or otherwise), earnings, business or properties of the Guarantor Company and its subsidiaries, subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth reflected in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Limited Offering Memorandum, as it may have been so amended or supplemented.
(fv) Subsequent An executed copy of IRS Form 8038 to be filed with the Execution TimeInternal Revenue Service.
(vi) Letters of Xxxxx’x Investors Service and S&P Global Ratings, there confirming that the ratings issued and in effect on the Bonds are “B1” and “B”, respectively.
(vii) Copies of the Limited Offering Memorandum, executed on behalf of the Company and the Issuer by an authorized officer of the Company and the Issuer, respectively.
(viii) Copies of the Company’s certificate of incorporation, and all amendments thereto, certified by the Secretary of State of the State of Delaware, a certificate of good standing of the Company issued by the Secretary of State of the State of Delaware, and a certificate of authority to conduct business in The Commonwealth of Massachusetts issued by the Secretary of State of the Commonwealth of Massachusetts.
(ix) Such additional certifications and opinions as the Underwriter or Xxxx Counsel may reasonably require. In case any of the conditions specified above in this Section 9 shall not have been fulfilled, or if the obligations of the Underwriter are terminated by the Underwriter for any decrease in reason permitted by this Bond Purchase Agreement, this Bond Purchase Agreement may be terminated by the rating Underwriter upon written notice thereof to the Issuer and the Company. Any such termination shall be without liability of any party to any other party; except that the obligations to pay fees and expenses as provided in Section 3 hereof shall continue in full force and effect to the extent set forth therein. The Underwriter may, in its discretion, waive any one or more of the debt securities issued conditions imposed by or guaranteed by either this Bond Purchase Agreement and proceed with the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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 purchase of the possible change.
(g) Prior to Bonds on the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the Underwriters to purchase Securities pursuant to the Terms Agreement are subject subject, in the discretion of the Representatives, to the accuracy of the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s executive officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) The Company and the Guarantor shall have requested and caused the delivery on the Closing Date of the following written opinions, substantially which shall be in form and substance reasonably satisfactory to you:
(i) Opinion and 10b-5 negative assurance letter of Xx. Xxxxxx Xxxxxx, Esq., Executive Vice President and General Counsel of Embraer, in form and substance satisfactory to the forms contemplated by Underwriters;
(ii) Opinion of Walkers, Cayman Islands counsel to the Terms AgreementCompany and the Guarantor, in form and substance satisfactory to the Underwriters; and
(iii) Opinion and 10b-5 negative assurance letter of Skadden, Arps, Slate, Xxxxxxx and Xxxx LLP, U.S. counsel to the Company and the Guarantor, in form and substance satisfactory to the Underwriters.
(b) The Representatives shall have received on the Closing Date the following written opinions, which shall cover customary matters and shall be reasonably satisfactory to you:
(i) Opinion and 10b-5 negative assurance letter of Xxxxxx Filho, Xxxxx Filho, Marrey Jr. e Xxxxxxx Advogados, Brazilian counsel to the Underwriters; and
(ii) Opinion and 10b-5 negative assurance letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, U.S. counsel to the Underwriters.
(c) The Guarantor shall have requested and caused PricewaterhouseCoopersPricewaterhouse Coopers Auditores Independentes and Deloitte Touche Tohmatsu Auditores Independentes, independent auditors registered public accounting firms for the Guarantor, and such other independent auditors registered public accounting firms as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, “comfort” letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, which shall be in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Securities Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letterscomfort” drafted letters prepared in accordance with Statement of Accounting Standards No. 72.
(cd) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Company in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Securities Act have been instituted or, to the Company’s knowledge, threatened; and no notice pursuant to Rule 401(g)(2) objecting to use of the automatic shelf registration statement form has been received; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on change, or any development involving a material adverse change, in or affecting the condition (business, properties, management, financial position, shareholders’ equity or otherwise), prospects, earnings, business or properties results of operations of the CompanyCompany and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(de) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Securities Act have been instituted or, to the Guarantor’s knowledge, threatened; and no notice pursuant to Rule 401(g)(2) objecting to use of the automatic shelf registration statement form has been received;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on change, or any development involving a material adverse change, in or affecting the condition (business, properties, management, financial position, shareholders’ equity or otherwise), prospects, earnings, business or properties results of operations of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities 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.
(ef) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (business, properties, management, financial position, shareholders’ equity or otherwise), earnings, business or properties results of operations of the Guarantor Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(fg) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities 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.
(gh) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities; and no injunction or order of any court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantee.
(i) The Company shall have applied to list the Securities on the New York Stock Exchange.
(j) The Securities shall be eligible for clearance and settlement through DTC.
(k) Prior to or on the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further informationcertificates, certificates documents and documents information as the Underwriters may reasonably request. All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Embraer - Empresa Brasileira De Aeronautica S.A.)
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters Underwriter to purchase Securities pursuant to and pay for the Terms Agreement are Series 2014A Bonds is subject to the accuracy of the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) The Company representations and warranties of the Board and the Guarantor Issuer shall have requested be true and caused correct as of the delivery date hereof and shall be deemed to be made again as of written opinions, substantially in the forms contemplated by the Terms AgreementClosing Date and shall be true and correct as of that time.
(b) The Guarantor At the Closing Date the Board and the Issuer shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may performed all of their obligations hereunder theretofore to be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at performed.
(c) At the Closing Date, letters (which may refer to letters previously there shall be delivered to one or more of you), the Underwriter and dated respectively as of the Execution Time and as of the Closing Date:
(i) an opinion of Bond Counsel addressed to the Issuer, in form and substance satisfactory to youthe Underwriter, confirming substantially in the form Appendix D to the Preliminary Official Statement;
(ii) a letter of Bond Counsel addressed to the Underwriter and advising the Underwriter that they are it may rely on the opinion described in 8(c)(i) and covering such other matters as shall be satisfactory to Underwriter;
(iii) an independent registered public accounting firm within the meaning opinion of the Act Issuer’s counsel addressed to the Issuer, Bond Counsel, Trustee and Underwriter, in form and substance satisfactory to the addressees, substantially in the form attached hereto as Exhibit A;
(iv) an opinion of the Attorney General addressed to the Issuer, Bond Counsel, Trustee and Underwriter, in form and substance satisfactory to the addressees, substantially as attached as Exhibit B hereto;
(v) an opinion of Bond Counsel addressed to the Underwriter, in form and substance satisfactory to the Underwriter, substantially in the form attached hereto as Exhibit C;
(vi) evidence from Xxxxx'x Investors Services that the Series 2014A Bonds are rated “Aa2”; and
(vii) an executed copy of the Continuing Disclosure Agreement by the Board, in substantially the form attached to the Preliminary Official Statement as Appendix C.
(d) The Indenture, the Seventeenth Supplement to Lease and the Exchange Act Continuing Disclosure Agreement, in substantially the forms existing on the date hereof, with such changes therein as may be mutually agreed upon by the parties thereto and covering the matters that are ordinarily covered Underwriter, shall have been duly authorized, executed and delivered by “comfort letters” drafted the respective parties thereto and shall be in accordance with Statement of Accounting Standards No. 72full force and effect on the Closing Date.
(ce) All proceedings and related matters in connection with the authorization, issue, sale and delivery of the Series 2014A Bonds shall have been satisfactory to Bond Counsel, and such counsel shall have been furnished with such papers and information as they may have reasonably requested to enable them to pass upon the matters referred to in this subdivision.
(f) The Company Board and the Issuer shall have furnished or caused to you a certificate, signed by two directors of be furnished to the Company with specific knowledge of Underwriter on the financial matters of the Company, reasonably Closing Date certificates satisfactory to you, dated the Closing Date, Underwriter and Bond Counsel as to the effect that the signers accuracy of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the all representations and warranties contained herein as of the Company in the Agreement are true and correct on date hereof and as of the Closing Date with and as to the same effect as if made on performance by the Closing Date Board and the Company has complied with Issuer of all the agreements and satisfied all the conditions on its part of their respective obligations hereunder to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(dg) The Guarantor shall have furnished to you a certificate, signed by two executive officers offer and sale of the Guarantor Series 2014A Bonds and underlying securities shall be exempt from registration under the Securities Act of 1933, as amended; the Series 2014A Bonds and underlying securities shall constitute “municipal securities” under the Securities Exchange Act of 1933, as amended; the Series 2014A Bonds and underlying securities shall constitute “municipal securities” under the Securities Exchange Act of 1934, as amended; and in connection with specific knowledge the offer and sale of the financial matters Series 2014A Bonds it shall not be necessary to qualify the Indenture under the Trust Indenture Act of the Guarantor1939, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:as amended.
(ih) The Series 2014A Bonds shall be registered or exempt from registration for sale in such states as the representations and warranties of the Guarantor in the Agreement are true and correct Underwriter may designate on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(ei) Subsequent As of the Closing Date, subsequent to the Execution Time or, if earlier, the respective dates as of to which information is given in the Registration Statement Official Statement, except as set forth or contemplated by the Official Statement, (exclusive 1) the State of South Dakota shall not have incurred any amendment thereof)material liabilities or obligations, direct or contingent, except in the Disclosure Package ordinary course of business and shall not have entered into any material transaction not in the ordinary course of business, (exclusive 2) except for scheduled repayments of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto)long-term debt, there shall not have been any change, change in long-term debt or any development involving a prospective change, decrease in or affecting the condition (financial or otherwise), earnings, business or properties fund balances of the Guarantor and its subsidiariesState of South Dakota, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto3) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease material adverse change in the rating business or financial position or results of any operations of the debt securities issued by State of South Dakota, and (4) no legal or guaranteed by either governmental proceeding affecting the Company State of South Dakota or the Guarantor transactions contemplated by this Agreement shall have been instituted or threatened which is material. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are in all material respects satisfactory to the Underwriter, as to which the Underwriter shall act reasonably. If any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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 condition of the possible change.
(g) Prior Underwriter’s obligation hereunder to be satisfied prior to the Closing DateDate is not so satisfied, this Agreement may be terminated by the Company Underwriter by notice in writing or by telegram to the Board and the Guarantor shall have furnished to Issuer. The Underwriter may waive in writing compliance by the Underwriters such further information, certificates and documents as Board or the Underwriters may reasonably requestIssuer of any one or more of the foregoing conditions or extend the time for their performance.
Appears in 1 contract
Samples: Bond Purchase Agreement
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters to purchase the Securities pursuant to the Terms under this Agreement are is subject to the accuracy of the representations and warranties on the part satisfaction of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) All the representations and warranties of the Issuers contained in this Agreement shall be true and correct as of the Time of Sale and on the Closing Date with the same force and effect as if made on and as of the Time of Sale and on and as of the Closing Date. The Company and the Guarantor Issuers shall have requested performed or complied with all of their agreements herein contained and caused required to be performed or complied with by them at or prior to the delivery of written opinions, substantially in the forms contemplated by the Terms AgreementClosing Date.
(bi) The Guarantor No stop order suspending the effectiveness of the Registration Statement shall have requested been issued and caused PricewaterhouseCoopersno proceedings for that purpose or pursuant to Section 8A of the Act against the Company in connection with the offering of the Securities shall have been commenced or shall be pending before or threatened by the Commission, independent auditors (ii) every request for additional information on the part of the Commission shall have been complied with in all material respects and (iii) no stop order suspending the sale of the Securities in any jurisdiction referred to in Section 6(h) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or threatened which would, in your reasonable judgment, make it impracticable or inadvisable to proceed with the public offering or delivery of the Securities or to enforce contracts for the Guarantor, sale of the Securities.
(c) Subsequent to the execution and such other independent auditors as may be specified in the Terms Agreement, delivery of this Agreement and prior to have furnished to you, at the Execution Time and at the Closing Date, there shall not have been 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 any Issuer’s debt by any “nationally recognized statistical rating organization,” as such term is defined in Section (3)(a)(62) of the Exchange Act.
(i) Since the date of the latest balance sheet included in the Registration Statement, the Time of Sale Information and the Prospectus there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, affairs or business prospects, whether or not arising in the ordinary course of business, of the Company and its subsidiaries taken as a whole, (ii) since the date of the latest balance sheet included in the Registration Statement, the Time of Sale Information and the Prospectus there shall not have been any material change in the capital stock or in the long-term debt of the Company or any of its subsidiaries from that set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus and (iii) the Company and its subsidiaries shall have no liability or obligation, direct or contingent, which is material to the Company and its subsidiaries, taken as a whole, other than those set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(e) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date, signed by (i) Xxxxxx X. Xxxxxx or Xxxxx Xxxx and (ii) Xxxx X. Xxxxx or Xxxxxxx Xxxxxxx Xxxxxxx in their capacities as (A) the Chairman of the Board or Chief Executive Officer and President and (B) Chief Financial Officer or Treasurer of the Company, respectively, confirming the matters set forth in paragraphs (a), (b), (c) and (d) of this Section 8.
(f) The Underwriters shall have received on the Closing Date letters (which may refer satisfactory to letters previously delivered to one or more of youyou and counsel for the Underwriters), dated respectively the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, in the form previously agreed between such counsel and counsel for the Underwriters.
(g) The Underwriters shall have received on the Closing Date letters, dated the Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, in form and substance satisfactory to the Underwriters.
(h) The Underwriters shall have received letters on and as of the Execution Time date of this Agreement and as of the Closing Date, in form and substance satisfactory to you, confirming that they are from PricewaterhouseCoopers LLP, an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance firm, with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished respect to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined statements and certain financial information contained in the Registration Statement, the Disclosure Package, Time of Sale Information (including the Final Prospectus and any supplements or amendments thereto, Preliminary Prospectus) and the Terms Agreement and that:Prospectus.
(i) the representations and warranties of Neither the Company in the Agreement are true and correct on and as nor any of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act subsidiaries shall have been instituted or, to the Company’s knowledge, threatened; and
(iii) sustained since the date of the most recent latest audited financial statements included or incorporated by reference in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto)loss or interference with its business from fire, there has been no material adverse effect on the condition (financial explosion, flood or otherwise)other calamity, prospectswhether or not covered by insurance, earningsor from any labor dispute or court or governmental action, business order or properties of the Companydecree, except otherwise than as set forth in or contemplated in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the such date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change in the capital stock, net revenues, per share or total amounts of income before extraordinary items or of net income or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (general affairs, management, financial position, stockholders’ equity or otherwise), earnings, business or properties results of operations of the Guarantor Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except otherwise than as set forth in or contemplated in the Disclosure Package Time of Sale Information and the Final Prospectus (exclusive of any supplement thereto) Prospectus, the effect of which which, in any such case described in clause (i) or (ii), is, in your sole judgmentthe judgment of the Representatives, so material and adverse as to make it impractical impracticable or inadvisable to proceed with the public offering or the delivery of the Securities as being delivered on the Closing Date on the terms and in the manner contemplated by in the Registration Statement (exclusive Time of any amendment thereof) Sale Information and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Prospectus.
(fj) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor The Issuers shall have furnished to you such other documents and certificates as to the Underwriters accuracy and completeness of any statement in the Registration Statement, any Issuer Free Writing Prospectus, any Time of Sale Information and the Prospectus as you reasonably may request.
(k) You shall have been furnished with such further information, additional documents and certificates and documents as you or counsel for the Underwriters may reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to you and your counsel. Any certificate or document signed by any officer of the Issuers and delivered to you or to your counsel shall be deemed a representation and warranty by the Issuers to the Underwriters as to the statements made therein.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the Underwriters to purchase Securities pursuant to the Terms Agreement are subject to the accuracy of the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s 's directors and the Guarantor’s 's officers made in any certificate furnished pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder and to the following further conditions:
(a) The Company and the Guarantor shall have requested and caused the delivery General Counsel of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, his opinion dated the Closing DateDate and addressed to the Representatives, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) The Guarantor (1) is a duly organized and validly existing company under the representations laws of Brazil, (2) has the full corporate power and warranties of authority necessary to own its property and assets and to conduct its business as now being conducted, (3) is duly qualified and authorized to do business in Brazil and (4) has all power and authority necessary to own or hold its respective properties and to conduct the Company businesses in which it is engaged, except where the failure to be so qualified or have such power or authority would not, individually or in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act aggregate, have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no a material adverse effect on the condition (financial performance of its obligations under the Securities or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole.
(ii) The Guarantor has full right, except as set forth in or contemplated in power and authority to execute and deliver each of the Disclosure Package Indenture, the Agreement, the Offered Debt Securities and the Final Prospectus Guaranty and to perform its obligations thereunder, and all corporate action required to be taken for the due and proper authorization, execution and delivery of the Indenture, the Agreement and the Securities and the consummation of the transactions contemplated thereby has been duly and validly taken;
(exclusive iii) Each of any supplement thereto); andthe Agreement, the Indenture and the Guaranty has been duly authorized, executed and delivered by the Guarantor;
(iv) since The execution, delivery and performance by the Execution Time, there has not been any decrease in the rating Guarantor of any each of the debt securities issued by or guaranteed Agreement, the Indenture and the Guaranty, the issuance and sale by the Company of the Offered Debt Securities and compliance by the Guarantor and the Company, as applicable, with the terms thereof and the consummation of the transactions contemplated by each of the Agreement and the Indenture will not conflict with or result in a breach or violation of (i) the bylaws of the Guarantor, (ii) the terms of any “nationally recognized statistical rating organization” (as defined for purposes indenture, contract, lease, mortgage, deed of Rule 436(g) under trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Act) Guarantor or any notice given of its subsidiaries is a party or bound or to which its or their property is subject, or (iii) any existing statute, law, rule, regulation, judgment, order or decree applicable to the Guarantor of any intended court, regulatory body, administrative agency, governmental body, arbitrator or potential decrease other authority in Brazil having jurisdiction over the Guarantor or any such rating of its properties, except in the case of (ii) and (iii) as would not, individually or of in the aggregate, have a possible change in any such rating that does not indicate material adverse effect on the direction performance of the possible change.
(e) Subsequent to the Execution Time or, if earlierAgreement, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof)Indenture, the Disclosure Package (exclusive of any amendment thereof) and Offered Debt Securities or the Final Prospectus (exclusive of any supplement thereto), there shall not have been any changeGuaranty, or any development involving a prospective change, in or affecting on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business.
(v) To the best of such counsel's knowledge, except as set forth described in the Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending in Brazil to which the Guarantor or any of its subsidiaries is a party which could reasonably be expected to result in a material adverse change in the financial position, stockholders' equity, results of operations, business operations or properties of the Guarantor and its subsidiaries taken as a whole or on the performance by the Guarantor of its obligations under the Offered Debt Securities, the Guaranty, the Agreement and the Indenture; and to the best of his knowledge, no such investigations, actions, suits or proceedings are threatened or contemplated by any Brazilian governments or regulatory authority or threatened by others in Brazil. In rendering the Disclosure Package above opinion, such counsel shall additionally state that, based on his examination of the Registration Statement, the Prospectus and the Final Prospectus (exclusive of any each amendment thereof or supplement thereto) , although he is not passing upon and does not assume any responsibility for the effect of which isaccuracy, in your sole judgment, so material and adverse as to make it impractical completeness or inadvisable to proceed with the offering or delivery fairness of the Securities as contemplated by statements contained in the Registration Statement (exclusive of and the Prospectus and any amendment thereof) or supplement thereto, on the basis of the foregoing, nothing has come to his attention that would lead him to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and on the Disclosure Package Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no such statement need be made by such counsel with respect to the financial statements and other financial and statistical data or information concerning mineral reserves included in the Final Registration Statement, the Prospectus (exclusive of or in any amendment or supplement thereto).
(fb) Subsequent The Company shall have requested and caused Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special United States counsel to the Execution TimeCompany and the Guarantor, there shall not have been any decrease in or such other firm as may be reasonably acceptable to you, to the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.effect that:
(gi) Prior to the Closing Date, The Indenture has been duly executed and delivered by each of the Company and the Guarantor shall under the law of the State of New York and qualified under the Trust Indenture Act, and is a valid, binding and enforceable agreement of the Company and the Guarantor.
(ii) The Offered Debt Securities have furnished been duly executed and delivered by the Company under the law of the State of New York and are the valid, binding and enforceable obligations of the Company, entitled to the benefits of the Indenture.
(iii) The Guaranty has been duly executed and delivered by the Guarantor under the law of the State of New York and is a valid, binding and enforceable obligation of the Guarantor.
(iv) The statements set forth in the Prospectus under the heading "Description of Debt Securities" and the description of the Securities in the Prospectus, insofar as such statements purport to summarize certain provisions of the Securities and the Indenture, provide a fair summary of such provisions, and the statements (if any) set forth in the Prospectus under the heading "Taxation-Certain United States Tax Considerations," insofar as such statements purport to summarize certain federal income tax laws of the United States, constitute a fair summary of the principal U.S. federal income tax consequences of an investment in the Securities.
(v) The Agreement has been duly executed and delivered by each of the Company and the Guarantor under the law of the State of New York.
(vi) The issuance and sale of the Offered Debt Securities to Underwriters pursuant to this Agreement, and the performance by the Company and the Guarantor of their respective obligations in the Agreement, the Indenture, the Offered Debt Securities and the Guaranty, do not require any consent, approval, authorization, registration or qualification of or with any governmental authority of the United States or the State of New York, except such further informationas have been obtained or effected under the Act, certificates the Exchange Act and the Trust Indenture Act (but such counsel need not express any opinion as to any consent, approval, authorization, registration or qualification that may be required under state securities or Blue Sky laws).
(vii) Neither the Company nor the Guarantor is and, after giving effect to the offering and sale of the Offered Debt Securities and the Guaranty and the application of the proceeds thereof as described in the Prospectus neither will be an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(viii) Under the laws of the State of New York relating to submission to jurisdiction, each of the Company and the Guarantor, pursuant to Section 11 of this Agreement, (i) has validly and irrevocably submitted to the personal jurisdiction of any state or federal court located in the City, County and State of New York in any action arising out of or related to the Purchase Agreement, (ii) to the fullest extent permitted by law, has validly and irrevocably waived any objection to the venue of a proceeding in any such court, and (iii) has validly appointed Rio Doce America, Inc. as its initial authorized agent for the purpose described in Section 11 of this Agreement. Such counsel shall additionally state in such opinion or in a separate letter that, although it is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus (except to the extent provided in subsection (iii) of this Section (b)), (A) nothing has come to the attention of such counsel that would lead such counsel to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no such statement need be made by such counsel with respect to the financial statements and other financial and statistical data or information concerning mineral reserves included in the Registration Statement, the Prospectus or in any amendment or supplement thereto), (ii) no information has come to such counsel's attention that causes it to believe that the documents incorporated by reference in the Registration Statement and the Prospectus (except the financial statements and schedules and other financial and statistical data or information concerning mineral reserves included therein, as to which such counsel need express no view), as of the Execution Time, were not appropriately responsive in all material respects to the requirements of the Exchange Act, (iii) such counsel does not know of any contracts or other documents of a character required to be filed as exhibits to the Registration Statement or required to be described in the Registration Statement or the Prospectus that are not filed or described as required and (iv) such counsel confirms that (based solely upon a telephonic confirmation from a representative of the Commission) the Registration Statement is effective under the Act and, to the best of such counsel's knowledge, no stop order with respect thereto has been issued, and no proceeding for that purpose has been instituted or threatened, by the Commission. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Underwriters may reasonably requestand (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and the Guarantor and public officials.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters Underwriter to purchase Securities pursuant to and pay for the Terms Agreement are Bonds shall be subject to the accuracy of of, and compliance with, the representations and warranties on the part of each of the Company Issuer and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofCompany contained herein, to the performance by each of the Issuer and the Company of their obligations to be performed hereunder at and prior to the Guarantor of all of its respective covenants and other obligations hereunder Closing Date, and to the following further conditions:
(a) The Company and the Guarantor shall have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of you), dated respectively as of the Execution Time On and as of the Closing Date:
(i) The Indenture, the Loan Agreement, the Tax Agreement, the Continuing Disclosure Agreement, and this Bond Purchase Agreement shall be in full force and effect, this Bond Purchase Agreement shall not have been amended, modified or supplemented (except as may have been agreed to in writing by the Underwriter), and the Indenture, the Loan Agreement, the Tax Agreement, and the Continuing Disclosure Agreement shall have been duly authorized, executed and delivered in the respective forms heretofore approved by the Underwriter, except as otherwise approved by the Underwriter, provided that the acceptance of delivery of the Bonds by the Underwriter on the Closing Date shall be deemed to constitute such approval.
(ii) The Bonds shall have been duly authorized, executed and authenticated in accordance with the provisions of this Bond Purchase Agreement, the Indenture, the Loan Agreement and the Authorizing Resolution, and shall have been delivered through the facilities of DTC or its agent.
(iii) Each of the representations, warranties and covenants of the Issuer in the Indenture, the Loan Agreement, the Tax Agreement, and this Bond Purchase Agreement, and the Company in the Company Documents shall be true and accurate in all material respects as if then made (except for any representations, warranties and covenants that are expressly made as of a specific prior date).
(iv) The Issuer shall have duly adopted, and there shall be in full force and effect, the Authorizing Resolution.
(v) No order, decree or injunction of any court of competent jurisdiction shall have been issued, or proceedings therefor shall have been commenced, nor shall any order, ruling, regulation or official statement by any governmental official, body or board have been issued, nor shall any legislation have been enacted, with the purpose or effect of prohibiting or limiting the issuance, offering or sale of the Bonds, as contemplated herein or in the Limited Offering Memorandum, or the performance of this Bond Purchase Agreement, the Indenture, the Loan Agreement, the Tax Agreement or the Continuing Disclosure Agreement in accordance with their respective terms.
(vi) After the date hereof, up to and including the time of the Closing Date, there shall not have occurred any change in or particularly affecting the Company, the Issuer, or the Company Documents as the foregoing matters are described in the Limited Offering Memorandum, which in the reasonable professional judgment of the Underwriter materially impairs the investment quality of the Bonds.
(b) On the Closing Date, the Underwriter shall receive executed or counterpart copies of the following documents, certificates, opinions and letters, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning Underwriter and its counsel:
(i) Executed copies of the Act Indenture, the Tax Agreement, the Loan Agreement, and the Exchange Act Continuing Disclosure Agreement; and covering a certified copy of the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement Authorizing Resolution and all proceedings of Accounting Standards No. 72the Issuer relating thereto.
(cii) The Opinions, dated the Closing Date, of: (1) Xxxxxx Beach PLLC, Bond Counsel to the Issuer, in substantially the form attached to the Preliminary Limited Offering Memorandum and the Limited Offering Memorandum as Appendix C thereto (together with a Supplemental Opinion of Bond Counsel addressed to the Underwriter and in substantially the form attached hereto as Exhibit B); (2) in-house counsel to the Company shall have furnished in substantially the form attached hereto as Exhibit C; (3) Squire Xxxxxx Xxxxx (US) LLP, counsel to you a certificatethe Underwriter, in substantially the form attached hereto as Exhibit D; and (4) Xxxxxxxx & Xxxxxxxx P.C., special counsel to the Issuer, in form and substance reasonably satisfactory to the Underwriter.
(iii) A certificate of the Issuer, signed by two directors an authorized officer of the Company with specific knowledge of the financial matters of the Company, reasonably Issuer satisfactory to youthe Underwriter, dated the Closing Date, to the effect that to the signers actual knowledge of such certificate have carefully examined that officer, each of the Registration Statementrepresentations of the Issuer set forth herein is true, accurate and complete in all material respects at and as of the Disclosure PackageClosing Date, except to the Final Prospectus and any supplements or amendments theretoextent that they relate to a specific prior date, and that each of the Terms Agreement and that:obligations of the Issuer hereunder to be performed at or prior to the Closing Date has been performed.
(iiv) A certificate, dated the Closing Date, signed by an authorized officer of the Company satisfactory to the Underwriter, to the effect that: (1) the representations and warranties of the Company in the Agreement set forth herein are true and correct on accurate in all material respects at and as of the Closing Date with Date, except to the same effect as if made on extent that they relate to a specific prior date, (2) each of the Closing Date and obligations of the Company has complied with all the agreements and satisfied all the conditions on its part under this Bond Purchase Agreement to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act Date have been instituted orperformed in all material respects, to the Company’s knowledge, threatened; and
and (iii3) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement Limited Offering Memorandum, as it may have been amended or supplemented (exclusive including amendments or supplements resulting from the filing of any amendment thereof), the Disclosure Package (exclusive of any amendment thereofdocuments incorporated by reference) and up to the Final Prospectus (exclusive of any supplement thereto)Closing Date, there shall not have has been any changeno material adverse change in the business, properties or any development involving a prospective change, in or affecting the financial condition (financial or otherwise), earnings, business or properties of the Guarantor Company and its subsidiaries, subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth reflected in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Limited Offering Memorandum, as it may have been so amended or supplemented.
(fv) Subsequent An executed copy of IRS Form 8038 to be filed with the Execution TimeInternal Revenue Service.
(vi) Letters of Xxxxx’x Investors Service and S&P Global Ratings, there confirming that the ratings issued and in effect on the Bonds are “B1” and “B”, respectively.
(vii) Copies of the Limited Offering Memorandum, executed on behalf of the Company and the Issuer by an authorized officer of the Company and the Issuer, respectively.
(viii) Copies of the Company’s certificate of incorporation, and all amendments thereto, certified by the Secretary of State of the State of Delaware, a certificate of good standing of the Company issued by the Secretary of State of the State of Delaware, and a certificate of authority to conduct business in the State of New York issued by the Secretary of State of the State of New York.
(ix) Such additional certifications and opinions as the Underwriter or Xxxx Counsel may reasonably require. In case any of the conditions specified above in this Section 9 shall not have been fulfilled, or if the obligations of the Underwriter are terminated by the Underwriter for any decrease in reason permitted by this Bond Purchase Agreement, this Bond Purchase Agreement may be terminated by the rating Underwriter upon written notice thereof to the Issuer and the Company. Any such termination shall be without liability of any party to any other party; except that the obligations to pay fees and expenses as provided in Section 3 hereof shall continue in full force and effect to the extent set forth therein. The Underwriter may, in its discretion, waive any one or more of the debt securities issued conditions imposed by or guaranteed by either this Bond Purchase Agreement and proceed with the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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 purchase of the possible change.
(g) Prior to Bonds on the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the Underwriters to purchase Securities pursuant to and pay for the Terms Agreement are Offered Notes on the Issuance Date shall be subject to the accuracy in all material respects of the representations and warranties on the part of each of the Company Issuer and Copelco herein, in the Guarantor herein contained, to Sales and Servicing Agreement and in the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofIndenture, to the performance by each the Issuer and Copelco in all material respects of the Company and the Guarantor of all of its respective covenants and other their obligations hereunder and to the following further additional conditions:
(a) The Company Issuer and the Guarantor Copelco shall each have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
delivered a certificate (b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of youan "Officer's Certificate"), dated respectively as of the Execution Time and as of the Closing Issuance Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Dateits President and its Chief Financial Officer, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of made by the Company Issuer or Copelco (as the case may be) in this Agreement, the Indenture and the Sales and Servicing Agreement are true and correct in all material respects at and as of the date of such Officer's Certificate as if made on and as of such date (except to the Closing Date with extent they expressly relate to an earlier date);
(ii) the same effect Issuer or Copelco (as if made on the Closing Date and the Company case may be) has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement, the Indenture and the Sales and Servicing Agreement at or prior to the Closing Datedate of such Officer's Certificate;
(iii) nothing has come to such officer's attention that would lead him to believe that the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) such officer is not aware of (A) any request of the Commission for further amendment of the Registration Statement or the Final Prospectus for any additional information, (B) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceeding for that purpose or (C) any notification with respect to the suspension of the qualification of the Offered Notes for sale in any jurisdiction or the threatening of any proceeding for that purpose.
(b) You shall have received from Xxxxxxx X. Xxxxxxx, Esq., a favorable opinion (subject to customary and usual qualifications), dated the Issuance Date and reasonably satisfactory in form and substance to the Underwriters and their counsel with respect to, or to the effect that: (i) the due formation and qualification of each of the Issuer and Copelco and that the Issuer and Copelco, as applicable, have the corporate power and authority to perform this Agreement, the Sales and Servicing Agreement, the Indenture and the Placement Agreement (the "Transaction Documents") and the transactions contemplated herein and therein; (ii) the due authorization, execution, delivery and enforceability of this Agreement and the other Transaction Documents as applicable, by the Issuer and Copelco; (iii) each of this Agreement and the other Transaction Documents are the legal, valid and binding obligation of the Issuer and Copelco, as applicable, enforceable against each of them in accordance with its terms (subject to customary exceptions relating to bankruptcy and laws affecting creditors' rights); (iv) the Notes have been duly authorized, executed and delivered by the Issuer and constitute the legal, valid and binding obligations of the Issuer, enforceable in accordance with their terms (subject to customary exceptions as to bankruptcy and laws affecting creditors' rights) and are entitled to the benefits of the Indenture; (v) the issuance and sale of the Notes by the Issuer, the performance of this Agreement by the Issuer and Copelco and the compliance by the Issuer and Copelco with the terms of the Transaction Documents, as applicable, and the consummation of the transactions contemplated herein and therein will not conflict with the organizational documents of the Issuer or Copelco, or to the best of such counsel's knowledge, any other contracts to which the Issuer or Copelco is a party or by which either of them is bound; (vi) to the best of such counsel's knowledge, there is no legal or governmental proceeding threatened or pending against the Issuer or Copelco which would have a material adverse effect on the issuance of the Notes; (vii) in the event a court disregarded the intent of the parties and characterized the transfers as a pledge of collateral, the Sales and Servicing Agreement and accompanying documentation creates a valid security interest in the Leases and the Equipment (or interests therein) under New Jersey law; (viii) assuming no prior financing statements covering the Leases are in effect based on a review of certain UCC searches, that financing statements covering the Leases and naming (A) the Issuer as secured party and Copelco as debtor and (B) the Issuer as debtor and the Trustee as secured party are being filed in the appropriate filing offices of the State of New Jersey, and assuming that the Trustee has taken possession of the Leases, the Trustee has a first priority perfected security interest in all right, title and interest of Copelco and the Issuer in the Leases; and (ix) on the Issuance Date the Registration Statement is effective, and, that to the best of such counsel's knowledge no stop order suspending the effectiveness of the Registration Statement has been issued or is threatened, and no proceedings for that purpose although such counsel is not passing on the factual accuracy, completeness or under Section 8A fairness of the Act have been instituted orstatements contained in the Registration Statement and the Prospectus, nothing came to such counsel's attention that leads such counsel to believe that either the Company’s knowledge, threatened; and
Registration Statement or the Prospectus (iii) since as of the Effective Date or the date of the most recent financial Prospectus) 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 included therein, in light of the circumstances under which they were made not misleading. In rendering such opinion, counsel may rely, to the extent deemed proper and as stated therein, as to matters of fact on certificates of responsible officers of the Issuer or incorporated by reference Copelco and public officials and as to matters of state law of jurisdictions other than the jurisdictions in which such counsel is admitted to practice, on opinions of local counsel satisfactory to the Disclosure Package and Underwriters.
(c) The Underwriters shall have received from Xxxxx Xxxxxxxxxx, special counsel for the Underwriters, such opinion or opinions, dated the Issuance Date, with respect to the validity of the Offered Notes, the Registration Statement, the Final Prospectus (exclusive of any supplement thereto)Prospectus, there has been no material adverse effect on true sale, nonconsolidation and other related matters as the condition (financial or otherwise), prospects, earnings, business or properties of the Company, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto)Underwriters may require.
(d) The Guarantor shall have furnished to you a certificate, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(e) Subsequent to At the Execution Time or, if earlier, and at the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Issuance Date, the Company and the Guarantor KMPG-Peat Marwick shall have furnished to the Underwriters such further informationa letter or letters, certificates dated the date of this Agreement and documents the Issuance Date, respectively, in form and substance satisfactory to the Underwriters.
(e) The Class A-1 Notes shall have been rated at least "A-1+", "D-1", "P-1" and "F-1+/AAA" and that the Class A-2, A-3 and A-4 notes be rated at least "AAA", "AAA", "Aaa" and "AAA" and that the Class B Notes be rated at least "A", "A+", "A" and "A+" by Standard & Poor's Ratings Group ("S&P"), Duff & Xxxxxx Credit Ratings Co. ("DCR"), Xxxxx'x Investors Service, Inc. ("Xxxxx'x") and Fitch Investors Service, L.P. ("Fitch"), respectively, and that the Class C Notes be rated at least "BBB+" and "BBB+" by DCR and Fitch respectively, which ratings shall not have been reduced or withdrawn as evidenced by the Underwriters may reasonably requestOfficer's Certificate referred to in Section 6(b).
Appears in 1 contract
Samples: Underwriting Agreement (Copelco Capital Funding Corp X)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters Underwriter to purchase and pay for the Securities pursuant which it has agreed to the Terms Agreement purchase hereunder, are subject to the accuracy (as of the date hereof, and as of the Closing Dates) of and compliance with the representations and warranties on the part of each of the Company and the Guarantor herein contained, to the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofherein, to the performance by each of the Company and the Guarantor of all of its respective covenants and other obligations hereunder hereunder, and to the following further conditions:
(a) The Company and the Guarantor Registration Statement shall have requested become effective and caused you shall have received notice thereof not later than 10:00 A.M., New York time, on the delivery day following the date of written opinionsthis Agreement, substantially or at such later time or on such later date as to which you may agree in writing; on or prior to the forms Closing Dates no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that or a similar purpose shall have been instituted or shall be pending or, to your knowledge or to the knowledge of the Company, shall be contemplated by the Terms AgreementCommission; any request on the part of the Commission for additional information shall have been complied with to the satisfaction of the Commission; and no stop order shall be in effect denying or suspending effectiveness of such qualification nor shall any stop order proceedings with respect thereto be instituted or pending or threatened. If required, the Prospectus shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Act.
(b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for At the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the First Closing Date, letters (which may refer to letters previously delivered to one or more of you)you shall have received the opinion, dated respectively as of the Execution Time and as of the First Closing Date, of Xxxxxxxxx & Xxxxxxxxx, LLP, counsel for the Company, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within counsel for the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing DateUnderwriter, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) The Registration Statement was declared effective under the representations and warranties of the Company in the Agreement are true and correct Act on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior ______ __, 1997; to the Closing Date;
(ii) best of our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued issued, and no proceedings for that purpose have been instituted or are pending, threatened or contemplated under Section 8A the Act or applicable state securities laws;
(ii) The Registration Statement and the Prospectus, as of the Effective Date (except for the financial statements and other financial data included therein or omitted therefrom, as to which we express no opinion), comply as to form in all material respects with the requirements of the Act and Regulations and the conditions for use of a registration statement on Form SB-2 have been instituted satisfied by the Company;
(iii) The description in the Registration Statement and the Prospectus of statutes, regulations, contracts and other documents have been reviewed by us, and, based upon such review, are accurate in all material respects and present fairly the information required to be disclosed, and to the best of our knowledge, there are no material statutes or regulations, or, to the Company’s best of our knowledge, threatened; andmaterial contracts or documents, of a character required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, which are not so described or filed as required. To the best of their knowledge, none of the material provisions of the contracts or instruments described above violates any existing applicable law, rule or regulation or judgment, order or decree known to us of any United States governmental agency or court having jurisdiction over the Company or any of its assets or businesses;
(iiivi) since To the date best of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Companytheir knowledge, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificateProspectus, signed by two executive officers of the Guarantor with specific knowledge of the financial matters of the Guarantor, reasonably satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating holders of any of the debt Company's securities issued by has any rights, "demand," "piggyback" or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) otherwise, to have such securities registered under the 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.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.;
Appears in 1 contract
Conditions of Underwriters’ Obligation. The -------------------------------------- obligations of the Underwriters to purchase Securities pursuant to and pay for the Terms Agreement are Notes on the Issuance Date shall be subject to the accuracy in all material respects of the respective representations and warranties on the part of each of the Company Issuer, the Seller and IOS Capital herein, in the Guarantor herein contained, to Assignment and Servicing Agreement and in the accuracy of the statements of the Company’s directors and the Guarantor’s officers made in any certificate furnished pursuant to the provisions hereofIndenture, to the performance by each the Issuer, the Seller and IOS Capital in all material respects of their respective obligations hereunder, under the Company Assignment and Servicing Agreement and under the Guarantor of all of its respective covenants and other obligations hereunder Indenture and to the following further additional conditions:
(a) The Company Issuer, the Seller and the Guarantor IOS Capital shall each have requested and caused the delivery of written opinions, substantially in the forms contemplated by the Terms Agreement.
delivered a certificate (b) The Guarantor shall have requested and caused PricewaterhouseCoopers, independent auditors for the Guarantor, and such other independent auditors as may be specified in the Terms Agreement, to have furnished to you, at the Execution Time and at the Closing Date, letters (which may refer to letters previously delivered to one or more of youan "Officer's Certificate"), dated respectively as of the Execution Time and as of the Closing Issuance Date, in form and substance satisfactory to you, confirming that they are an independent registered public accounting firm within the meaning of the Act and the Exchange Act and covering the matters that are ordinarily covered by “comfort letters” drafted in accordance with Statement of Accounting Standards No. 72.
(c) The Company shall have furnished to you a certificate, signed by two directors of the Company with specific knowledge of the financial matters of the Company, reasonably satisfactory to you, dated the Closing Dateits Vice President and its Chief Financial Officer, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of made by the Company Issuer, the Seller or IOS Capital (as the case may be) in this Agreement, the Indenture and the Assignment and Servicing Agreement are true and correct in all material respects at and as of the date of such Officer's Certificate as if made on and as of such date (except to the Closing Date with extent they expressly relate to an earlier date);
(ii) the same effect Issuer, the Seller or IOS Capital (as if made on the Closing Date and the Company case may be) has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement, the Indenture and the Assignment and Servicing Agreement at or prior to the Closing Datedate of such Officer's Certificate;
(iii) nothing has come to such officer's attention that would lead him to believe that the Final Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) such officer is not aware of (A) any request of the Commission for further amendment of the Registration Statement or the Final Prospectus for any additional information, (B) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceeding for that purpose or (C) any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the threatening of any proceeding for that purpose.
(b) You shall have received a favorable opinion from Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, counsel to the Issuer, the Seller and IOS Capital (subject to customary and usual qualifications), each dated the Issuance Date and reasonably satisfactory in form and substance to the Underwriters and their counsel with respect to or to the effect that: (i) the existence and good standing of IOS Capital, (ii) that the Issuer, the Seller and IOS Capital, as applicable, have the corporate authority to perform this Agreement, the Assignment and Servicing Agreement, the Indenture and the Insurance Agreement (collectively, the "Transaction Documents") and the transactions contemplated herein and therein; (iii) the due authorization, execution, delivery and enforceability of this Agreement and the other Transaction Documents, as applicable, by the Issuer, the Seller and IOS Capital; (iv) each of this Agreement and the other Transaction Documents are the legal, valid and binding obligation of the Issuer, the Seller and IOS Capital, as applicable, enforceable against each of them in accordance with its terms (subject to customary exceptions relating to bankruptcy and laws affecting creditors' rights); (v) the Notes have been duly authorized, executed and delivered by the Issuer and constitute the legal, valid and binding obligations of the Issuer enforceable in accordance with their terms (subject to customary exceptions as to bankruptcy and laws affecting creditors' rights) and are entitled to the benefits of the Indenture; (vi) the issuance and sale of the Notes by the Issuer, the performance of this Agreement by the Issuer, the Seller and IOS Capital and compliance by the Issuer, the Seller and IOS Capital with the terms of the Transaction Documents, as applicable, and the consummation of the transactions contemplated herein and therein will not conflict with the organizational documents of the Issuer or the Seller, or to the best of such counsel's knowledge, any other contract to which the Issuer or the Seller is a party or by which either of them is bound; (vii) to the best of such counsel's knowledge, there is no legal or governmental proceeding threatened or pending against the Issuer or the Seller which would have a material adverse effect on the issuance of the Notes, the performance by the Issuer or the Seller of this Agreement or compliance by the Issuer or the Seller with the terms of the Transaction Documents to which they are parties, respectively; and (viii) on the Issuance Date the Registration Statement is effective, and, that to the best of such counsel's knowledge no stop order suspending the effectiveness of the Registration Statement has been issued or is threatened, and no proceedings for that purpose although such counsel is not passing on the factual accuracy, completeness or under Section 8A fairness of the Act have been instituted orstatements contained in the sections entitled "The Issuer", "The Servicer and the Originator" and "The Asset Pool" in the Prospectus Supplement and "The Issuer", "The Asset Pools", "Management's Discussion and Analysis of Financial Condition", "Directors and Executive Officers of the Manager of the Issuer", "The Leases" and "The Originator's Leasing Business" in the Base Prospectus nothing came to such counsel's attention that leads such counsel to believe that any of such sections (as of the Company’s knowledge, threatened; and
(iii) since Effective Date or the date of the most recent financial Final Prospectus) 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 included or incorporated by reference therein, in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties light of the Companycircumstances under which they were made not misleading (in each case other than the financial and statistical information and notes and schedules thereto, except as set forth in or contemplated in to which such counsel need express no opinion). In rendering such opinion, counsel may rely, to the Disclosure Package extent deemed proper and the Final Prospectus (exclusive as stated therein, as to matters of any supplement thereto).
(d) The Guarantor shall have furnished to you a certificate, signed by two executive fact on certificates of responsible officers of the Guarantor with specific knowledge of Issuer, the financial Seller or IOS Capital and public officials and as to matters of state law of jurisdictions other than the Guarantorjurisdictions in which such counsel is admitted to practice, reasonably on opinions of local counsel satisfactory to you, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto, and the Terms Agreement and that:
(i) the representations and warranties of the Guarantor in the Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Guarantor’s knowledge, threatened;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto); and
(iv) since the Execution Time, there has not been any decrease in the rating of any of the debt securities issued by or guaranteed by the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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 changeUnderwriters.
(e) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure Package (exclusive of any amendment thereof) and the Final Prospectus (exclusive of any supplement thereto), there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Guarantor and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto) the effect of which is, in your sole judgment, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(f) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the debt securities issued by or guaranteed by either the Company or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 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.
(g) Prior to the Closing Date, the Company and the Guarantor shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
Appears in 1 contract
