Conditions of Underwriters’ Obligation. The obligations of the Underwriters hereunder shall be subject, in the discretion of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions: (a) Any Preliminary Prospectus and the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i)); (b) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, and no proceeding for that purpose shall have been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received;
Appears in 8 contracts
Samples: Underwriting Agreement (Microsoft Corp), Underwriting Agreement (Microsoft Corp), Underwriting Agreement (Microsoft Corp)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters hereunder shall be subject, in the discretion of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus and the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Final Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i));
(b) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, and no proceeding for that purpose shall have been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received;
Appears in 4 contracts
Samples: Underwriting Agreement (Microsoft Corp), Underwriting Agreement (Microsoft Corp), Underwriting Agreement (Microsoft Corp)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters hereunder to purchase Securities at the Time of Delivery as provided in the Underwriting Agreement shall be subject, in the discretion of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus and the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i));
(b) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, and no proceeding for that purpose shall have been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received;
(c) The General Counsel of the Company, any Deputy General Counsel of the Company, any Associate General Counsel of the Company or such other person named in the Underwriting Agreement, shall have furnished to the Representatives his or her written opinion, dated the Time of Delivery, in form and substance substantially to the effect set forth in Schedule IV hereto;
(d) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, shall have furnished to the Representatives their written opinion and negative assurance letter, dated the Time of Delivery, in form and substance substantially to the effect set forth in Schedule V hereto;
(e) The Representatives shall have received an opinion and negative assurance letter of counsel for the Underwriters, dated the Time of Delivery, with respect to the validity of the Indenture and the Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters;
(f) On the date of the Underwriting Agreement and at the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a “comfort” letter or letters, dated the date of the Underwriting Agreement and Time of Delivery, respectively, as to such matters as the Representatives may reasonably request and in form and substance reasonably satisfactory to the Representatives (which comfort letter or letters shall, as applicable, be substantially consistent with drafts provided by Deloitte & Touche LLP to the Representatives prior to or on the date of the Underwriting Agreement or comfort letters previously delivered in respect of offerings of securities by the Company);
(g) Since the respective dates as of which information is given in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there shall not have been a material adverse change in the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus (excluding any amendment or supplement thereto), the effect of which is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus;
(h) On or after the date of the Underwriting Agreement 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; (ii) a suspension or material limitation in trading of any securities issued by the Company; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (v) the occurrence of any other calamity or crisis affecting the financial markets of the United States, if the effect of any such event specified in clause (iv) or (v) in the reasonable judgment of the Representatives makes it impractical or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus;
(i) On or after the date of the Underwriting Agreement and prior to the Time of Delivery (i) no downgrading shall have occurred in the rating assigned to the Company’s debt securities by Standard and Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies, Inc., or Xxxxx’x Investors Service, Inc. and (ii) neither of these rating organizations shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Company’s debt securities, the effect of which, in any event specified in clause (i) or (ii), in the reasonable judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package and the Prospectus; and
(j) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery a certificate of the Company signed by an officer of the Company reasonably satisfactory to the Representatives as to (i) the accuracy of the representations and warranties of the Company herein as of the Time of Delivery, (ii) the performance by the Company of all of its obligations hereunder to be performed at or prior to the Time of Delivery and (iii) the matters set forth in Sections 7(b) and 7(g) hereof.
Appears in 3 contracts
Samples: Underwriting Agreement (Microsoft Corp), Underwriting Agreement (Microsoft Corp), Underwriting Agreement (Microsoft Corp)
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters hereunder shall be subject, in Underwriter to purchase the discretion Securities under this Agreement is subject to the satisfaction of each of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus All the representations and warranties of the Prospectus Issuers contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Closing Date. The Issuers shall have been filed performed or complied with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each such filing by the rules all of their agreements herein contained and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed performed or complied with by them at or prior to the Commission pursuant to Rule 433(d)(5)(i));Closing Date.
(bi) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issuedissued and no proceedings for that purpose shall have been commenced or shall be pending before or threatened by the Commission, (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(f) shall have been issued and no proceeding for that purpose shall have been initiated commenced or shall be pending or threatened by which would, in your reasonable judgment, make it impracticable or inadvisable to market the Commission, and no notice of objection Securities or to enforce contracts for the sale of the Commission Securities.
(c) Subsequent to the use execution and delivery of this Agreement and prior to 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 for purposes of Rule 436(g)(2) under the Act.
(d) (i) Since the date of the latest balance sheet included in the Registration Statement 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 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 in the Registration Statement and 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 reflected in the Registration Statement and the Prospectus.
(e) You shall have received on the Closing Date a certificate dated the Closing Date, signed by (i) Dxxxxx X. Xxxxxx, Dxxxxx X. Xxxxxxx or Sxxxxx X. Xxxxxx and (ii) Bxxx X. Xxxxx or Sxxxxx X. Xxxxx in their capacities as (A) the Chairman of the Board, Chief Executive Officer and President or Senior Executive Vice 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) You shall have received on the Closing Date an opinion (satisfactory to you and counsel for the Underwriter), dated the Closing Date, of Gxxxxx, Dxxx & Cxxxxxxx LLP, special counsel for the Company, substantially in the form of Exhibit A hereto.
(g) You shall have received on the Closing Date letters, dated the Closing Date, of Cxxxxx Xxxxxx and Rxxxxxx llp, counsel for the Underwriter, in form and substance satisfactory to the Underwriter.
(h) You shall have received letters on and as of the Closing Date, in form and substance satisfactory to you, from Ernst & Young LLP, independent public accountants, with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus and substantially in the form and substance of the letter previously delivered to you by Ernst & Young LLP in connection with the Registration Statement and the Prospectus.
(i) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements in the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus or (ii) since such date 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 general affairs, management, financial position, stockholders’ equity or results of operations of the Com- pany and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Underwriter, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered on the Closing Date on the terms and in the manner contemplated in the Prospectus.
(j) The Issuers shall have furnished to you such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2the Prospectus as you reasonably may request.
(k) under the Securities Act You shall have been received;furnished with such additional documents and certificates as you or counsel for the Underwriter 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 Underwriter 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 obligation of the Underwriters hereunder shall be subject, in to purchase the discretion Securities under this Agreement is subject to the satisfaction of each of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus All the representations and warranties of the Prospectus 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 Issuers shall have been filed performed or complied with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each such filing by the rules all of their agreements herein contained and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed performed or complied with by them at or prior to the Commission pursuant to Rule 433(d)(5)(i));Closing Date.
(bi) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issuedissued and no 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, (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 initiated commenced or shall be pending or threatened by which would, in your reasonable judgment, make it impracticable or inadvisable to market the Commission, and no notice of objection Securities or to enforce contracts for the sale of the Commission Securities.
(c) Subsequent to the use execution and delivery of this Agreement and prior to 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 Statement, the Time of Sale Information and the Prospectus there shall not have been any material adverse change, or any postdevelopment 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-effective amendment thereto pursuant 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 Rule 401(g)(2the 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) under You shall have received on the Closing Date a certificate, dated the Closing Date, signed by (i) Xxxxxx X. Xxxxxx or Xxxxxx X. Xxxxxxx and (ii) Xxxx X. Xxxxx or Xxxxxx X. Xxxxx 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) You shall have received on the Closing Date letters (satisfactory to you and counsel for the Underwriters), dated the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel for the Company, in the form previously agreed between such special counsel and counsel for the Underwriters.
(g) You 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) You shall have received letters on and as of the date of this Agreement and the Closing Date, in form and substance satisfactory to you, from PricewaterhouseCoopers LLP, an independent registered public accounting firm, with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Information (including the Preliminary Prospectus) and the Prospectus.
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements in the Time of Sale Information and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus or (ii) since such date 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 general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Act being delivered on the Closing Date on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(j) The Issuers shall have furnished to you such other documents and certificates as to the 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 received;furnished with such additional documents and certificates 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 hereunder shall be subject, in Underwriter to purchase and pay for the discretion Shares are subject to the accuracy as of the Representativesdate hereof, and as of each Closing Date to (i) the condition that all continuing accuracy of and compliance with the representations and warranties of the Company herein are herein, to the performance by the Company its obligations hereunder, and to the following conditions:
(i) The Registration Statement shall have become and remain effective under the Act and the Underwriter shall have 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 on such date as to which Underwriter may agree in writing; (ii) on or prior to each Closing Date no stop order suspending the effectiveness of the 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, to the knowledge of the Company, shall be threatened or contemplated by the Commission or any state securities commission; (iii) to the knowledge of the Company, 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 contemplated by the authorities of any such jurisdiction or shall have been issued and remain in effect; (iv) any 8935\3\864942.3 864942.4 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) You shall have received the opinion, dated as of each Closing Date, of Xxxxx Xxxxxxx Xxxxxx & Xxxxxx LLP, counsel for the Time Company, in form and substance satisfactory to the Underwriter, to the effect specified in Exhibit D 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 Delivery true 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 correctthe 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 independent public accountants with respect to the Company within the meaning of the Act and the applicable rules and regulations;
(ii) the condition financial statements and the schedules included in the Registration Statement and the Prospectus were examined by them and, in their opinion, comply as to form in all material respect with the applicable accounting 8935\3\864942.3 864942.4 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 such 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 8935\3\864942.3 864942.4 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. Such 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.
(e) You shall have received an opinion from Xxxxxxxxxx Hyatt & Xxxxxx, P.C., your counsel, to the effect specified in Exhibit E attached hereto.
(i) the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects with the same effect as if made on and as of the Closing Dates, taking into account for the Over-Allotment Option Closing Date(s) the effect of the transactions contemplated hereby, and the Company shall have performed all of its obligations hereunder theretofore and satisfied all of the conditions on its part to be performed satisfied at or prior to such Closing Date; (ii) the Registration Statement and the Prospectus and any amendments or 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 circumstances under which they were made in the case of the Prospectus); (iii) there shall have been, since the following additional conditions:respective dates as of which information is given, no material adverse change, or to the Company’s knowledge, any development involving a prospective material adverse change, in the business, properties, condition (financial or otherwise), results of operations, capital stock, long-term or short-term debt or general affairs of the Company 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 proceeding at law or in equity shall be pending or, to the knowledge of the Company, threatened against the Company which would be required to be set forth in the Registration Statement, and no proceedings shall be pending or, to the knowledge of the Company, threatened against the Company before or by any commission, board or administrative agency, wherein an unfavorable decision, ruling or finding would materially and adversely affect the business, property, condition (financial or otherwise), results of operations or general affairs of the Company; and (v) you shall have received, at such Closing Date, a certificate signed by each of 8935\3\864942.3 864942.4 the chief executive officer and the principal financial officer of the Company, dated as of such Closing Date, evidencing compliance with the provisions of this subsection (f).
(ag) Any Preliminary Prospectus and the Prospectus No action shall have been filed with taken by the Commission pursuant or the NASD, the effect of which would make it improper, at any time prior to Rule 424(b) under a Closing Date, for members of the Securities Act within NASD to execute transactions in the applicable time period prescribed Shares and no proceedings for each the taking of such filing action shall have been instituted or shall be pending, or, to the knowledge of the Underwriter or the Company, shall be contemplated by the rules and regulations under Commission or the Securities Act and in accordance with Section 5(a) hereof; NASD. The Company and the Pricing Term Sheet 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 Section 5(b) hereof 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 other Issuer Free Writing Prospectus relating time prior to, each Closing Date by the Underwriter notifying the Company of such cancellation in writing at or prior to the Securities applicable Closing Date. Any such cancellation shall be without liability of the Underwriter to the Company.
(j) The Underwriter shall have been filed received such other documents and items as it or its counsel has reasonably requested and are satisfied with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i));
(b) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, and no proceeding for that purpose shall have been initiated or threatened by the Commission, and no notice of objection of the Commission all other items relating directly and/or indirectly to the use of Company and the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received;Offering.
Appears in 1 contract
Samples: Underwriting Agreement (PRB Gas Transportation, Inc.)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters hereunder to purchase and pay for the Notes on the Issuance Date shall be subject, subject to the accuracy in the discretion all material respects of the Representatives, to (i) the condition that all respective representations and warranties of the Company herein are as Issuer, the Seller and IOS Capital herein, in the Assignment and Servicing Agreement and in the Indenture, to the performance by the Issuer, the Seller and IOS Capital in all material respects of their respective obligations hereunder, under the Time of Delivery true Assignment and correct, (ii) Servicing Agreement and under the condition that the Company shall have performed all of its obligations hereunder theretofore Indenture and to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus The Issuer, the Seller and IOS Capital shall each have delivered a certificate (an "Officer's Certificate"), dated the Issuance Date, signed by its Vice President and its Chief Financial Officer, to the effect that:
(i) the representations and warranties made by the Issuer, the Seller or IOS Capital (as the case may be) in this Agreement, the Indenture and the Prospectus shall have been filed with Assignment and Servicing Agreement are true and correct in all material respects at and as of the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each date of such filing by the rules Officer's Certificate as if made on and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating as of such date (except to the Securities shall have been filed with the Commission pursuant extent they expressly relate to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i)an earlier date);
(bii) No the Issuer, the Seller or IOS Capital (as the 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 date 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 part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, and no 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 been initiated 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 threatened 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 CommissionIssuer, 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 no notice of objection the consummation of the Commission transactions contemplated herein and therein will not conflict with the organizational documents of the Issuer, the Seller or IOS Capital, or to the use 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 any post-effective amendment thereto pursuant is threatened, and that with respect to Rule 401(g)(2) under the Securities Act shall have been received;statements contained in the sections entitled "The Issuer", "The Servicer and the Originator" and "The Asset Pool" in
Appears in 1 contract
Samples: Underwriting Agreement (Ikon Receivables Funding LLC)
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters hereunder shall be subject, in to purchase the discretion Securities under this Agreement is subject to the satisfaction of each of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus All the representations and warranties of the Prospectus 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 Issuers shall have been filed performed or complied with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each such filing by the rules all of their agreements herein contained and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed performed or complied with by them at or prior to the Commission pursuant to Rule 433(d)(5)(i));Closing Date.
(bi) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issuedissued and no 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, (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 initiated commenced or shall be pending or threatened by which would, in your reasonable judgment, make it impracticable or inadvisable to market the Commission, and no notice of objection Securities or to enforce contracts for the sale of the Commission Securities.
(c) Subsequent to the use execution and delivery of this Agreement and prior to 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.
(d) (i) Since the date of the latest balance sheet included in the Registration Statement Statement, the Time of Sale Information and the Prospectus there shall not have been any material adverse change, or any postdevelopment 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-effective amendment thereto pursuant 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 Rule 401(g)(2the 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) under 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 (satisfactory to you and counsel for the Underwriters), dated 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 date of this Agreement and the Closing Date, in form and substance satisfactory to you, from PricewaterhouseCoopers LLP, an independent registered public accounting firm, with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Information (including the Preliminary Prospectus) and the Prospectus.
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements in the Time of Sale Information and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus or (ii) since such date 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 general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Act being delivered on the Closing Date on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(j) The Issuers shall have furnished to you such other documents and certificates as to the 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 received;furnished with such additional documents and certificates 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 hereunder shall be subject, in the discretion of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus and the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Final Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i));
(b) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, and no proceeding for that purpose shall have been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been receivedreceived by the Company;
(c) Dxxxxx &Whitney LLP, counsel for the Company, shall have furnished to the Representatives their written opinion and negative assurance letter, dated the Time of Delivery, in form and substance satisfactory to the Representatives;
(d) Dxxxx Xxxx & Wxxxxxxx LLP, counsel for the Underwriters, shall have furnished to the Representatives their written opinion and negative assurance letter, dated the Time of Delivery, with respect to the validity of the Indenture and the Securities, the Registration Statement, the Disclosure Package, the Prospectus, and other related matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters;
(e) On the date of this Agreement and at the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a “comfort” letter or letters, dated the date hereof and the Time of Delivery, respectively, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Disclosure Package and the Prospectus; provided that the letter delivered at the Time of Delivery shall use a “cut-off” date no more than three business days prior to the Time of Delivery;
(f) Since the respective dates as of which information is given in the Disclosure Package and the Prospectus, there shall not have been a material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as described in the Disclosure Package and the Prospectus (excluding any amendment or supplement thereto), the effect of which is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus;
(g) On or after the date of this Agreement 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; (ii) a suspension or material limitation in trading of any securities issued by the Company; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (v) the occurrence of any other calamity or crisis affecting the financial markets of the United States, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impractical or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus;
(h) On or after the date of this Agreement and prior to the Time of Delivery (i) no downgrading shall have occurred in the rating assigned to the Company’s debt securities by S&P Global Ratings or Mxxxx’x Investors Service, Inc. and (ii) neither of these rating organizations shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Company’s debt securities, the effect of which, in any event specified in clause (i) or (ii), in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus; and
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery a certificate of the Company signed by an officer of the Company reasonably satisfactory to the Representatives as to (i) the accuracy of the representations and warranties of the Company herein as of the Time of Delivery, (ii) the performance by the Company of all of its obligations hereunder to be performed at or prior to the Time of Delivery and (iii) the matters set forth in Sections 7(b) and 7(f) hereof.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of the several Underwriters hereunder shall be subjectto purchase and pay for the Stock which they have respectively agreed to purchase hereunder, in are subject to the discretion accuracy (as of the Representativesdate hereof, to (iand as of the Closing Dates) of and compliance with the condition that all representations and warranties of the Company herein are as of herein, to the Time of Delivery true and correct, (ii) the condition that performance by the Company shall have performed all of its covenants and obligations hereunder theretofore hereunder, and to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus The Registration Statement shall have become effective and you shall have received notice thereof not later than 10:00 A.M., New York time, on the day 20 21 following the date of this Agreement, or at such later time or on such later date as to which you may agree in writing; on or prior to the 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 Commission; any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of O'Coxxxx, Xxvanagh, Anderson, Killxxxxxxxxx & Xeshxxxx, X.A., counsel to the several Underwriters; 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 pursuant to Rule in the manner and within the time period required by Rules 424(b) and 430A under the Securities Act within the applicable time period prescribed for each such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i));Act.
(b) No stop order suspending At the effectiveness First Closing Date, you shall have received the opinion, addressed to the Underwriters, dated as of the First Closing Date, of Rudnxxx & Xolfx, xxunsel for the Company, in form and substance satisfactory to counsel for the Underwriters, to the effect that:
(i) the Company and each of its Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the state of its incorporation, with full corporate power and authority to own its properties and conduct its business as described in the Registration Statement and Prospectus; the Company and each of its Subsidiaries is duly qualified or any part thereof licensed to do business as a foreign corporation and is in good standing in each jurisdiction in which the ownership or suspending leasing of its properties or preventing conduct of its business requires such qualification, except where the use failure to qualify would not have a material adverse effect upon the business or financial condition of the Prospectus Company or any Issuer Free Writing Prospectus shall such Subsidiary;
(ii) to the best knowledge of such counsel after due inquiry, (a) the Company has obtained, or is in the 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) the Company is in all material respects complying therewith;
(iii) 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 stock requiring authorization for issuance by the Company's board of directors have been duly authorized, validly issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; 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; the Securities conform to the description thereof contained in the Prospectus; the Securities have been duly authorized and, when issued and delivered pursuant to this Agreement, will be duly and validly issued, fully paid, non-assessable, free of preemptive rights and no proceeding for that purpose shall have been initiated personal liability will attach to the ownership thereof; no further approval or threatened by the Commission, and no notice of objection authority of the Commission to stockholders or the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been received;Board
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations of Underwriter to purchase and pay for the Underwriters hereunder Notes on the Issuance Date shall be subject, subject to the accuracy in the discretion all material respects of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as Transferor and ILC herein, in each of the Time Basic Documents, to the performance by Transferor and ILC in all material respects of Delivery true and correct, (ii) the condition that the Company shall have performed all of its their obligations hereunder theretofore and to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus Transferor and ILC shall each have delivered a certificate (an "Officer's Certificate"), dated the Issuance Date, signed by its [President and its Chief Financial Officer], to the effect that:
(i) the representations and warranties made by Transferor or ILC, as applicable, in this Agreement and the Prospectus shall have been filed with Basic Documents (the Commission pursuant to Rule 424(b"Transaction Documents") under are true and correct in all material respects at and as of the Securities Act within the applicable time period prescribed for each date of such filing by the rules Officer's Certificate as if made on and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating as of such date (except to the Securities shall have been filed with the Commission pursuant extent they expressly relate to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i)an earlier date);
(bii) No Transferor or ILC (as the case may be) has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the Transaction Documents at or prior to the date of such Officer's Certificate;
(iii) nothing has come to such officer's attention that would lead such officer 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 part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, and no 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) Underwriter shall have received from counsel to ILC and Transferor, favorable opinions (subject to customary and usual qualifications), dated the Issuance Date and reasonably satisfactory in form and substance to Underwriter and their counsel with respect to, or to the effect that, among other things: (i) the due formation and qualification of each of Transferor and ILC and that Transferor and ILC, as applicable, have the corporate power and authority to perform 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 Transferor and ILC; (iii) each of this Agreement and the other Transaction Documents are the legal, valid and binding obligation of Transferor and ILC, 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 initiated duly authorized, executed and delivered to Transferor and constitute the legal, valid and binding obligations of 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 of the Notes by Issuer, the sale of the Notes by Transferor, the performance of this Agreement by Transferor and ILC, the compliance by Transferor and ILC 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 Transferor or ILC, or to the best of any such counsel's knowledge, any other contracts to which Transferor or ILC 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 Transferor or ILC which would have a material adverse effect on the issuance of the Notes; (vii) if a court disregarded the intent of the parties and characterized the transfers as a pledge of collateral, each of the Purchase Agreement and the Pooling and Servicing Agreement and accompanying documentation creates a valid security interest in the Leases and the Equipment (or interests therein) under New York law; (viii) assuming no prior financing statements covering the Leases are in effect based on a review of certain UCC searches and that financing statements covering the Leases and naming (A) Transferor as secured party/purchaser and ILC as debtor/seller, (B) Transferor as debtor/seller and Issuer as secured party/purchaser and (c) Issuer as debtor and Indenture Trustee as secured party, in each case are being filed in the appropriate filing offices of the State of Ohio, (1) immediately after giving effect to the transfers contemplated by the CommissionPurchase Agreement, Transferor has a first priority perfected interest in all right, title and interest of ILC in the Leases, (2) immediately after giving effect to the transfers contemplated by the Pooling and Servicing Agreement, Issuer has a first priority perfected interest in all right, title and interest of Transferor in the Leases, and no notice (3) immediately after giving effect to the grant contemplated by the Indenture, Indenture Trustee has a first priority perfected security interest in all right, title and interest of objection Issuer in the Leases; (ix) the Trust Agreement is not required to be qualified under Trust Indenture Act and the Trust is not required to be registered under the 1940 Act, (x) the Indenture has been duly qualified under the Trust Indenture Act, (xi) neither the Transferor nor Issuer is an "investment company" or a company "controlled by" an "investment company" within the meaning of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities 1940 Act shall have been received;and
Appears in 1 contract
Samples: Underwriting Agreement (Provident Lease Receivables Corp)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters hereunder shall be subject, in to purchase Securities pursuant to the discretion Terms Agreement are subject to the accuracy of the Representatives, to (i) the condition that all representations and warranties on the part of the Company herein are as contained, to the accuracy of the Time statements of Delivery true and correctthe Company’s officers made in any certificate furnished pursuant to the provisions hereof, (ii) to the condition that performance by the Company shall have performed of all of its covenants and other obligations hereunder theretofore and to be performed and (iii) the following additional further conditions:
(a) Any Preliminary At the Closing Time (i) no stop order suspending the effectiveness of the Registration Statement, or, to the knowledge of the Company, proceedings therefor initiated or threatened by the Commission, nor any notice objecting to its use shall have been issued under the 1933 Act, no order suspending trading or striking or withdrawing any Securities to be listed on a national securities exchange from listing and registration under the 1934 Act shall be in effect, and no proceedings under the 1933 Act or 1934 Act therefor shall have been initiated or threatened by the Commission, or, with respect to the filing of any Form 8-A under the 1934 Act, by any national securities exchange, (ii) the Final Prospectus Supplement, and any supplement thereto, have been filed in the Prospectus manner and within the time period required by Rule 424(b), (iii) the final term sheet contemplated by Section 3(b) hereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the 1933 Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433, (iv) the rating assigned by any nationally recognized statistical rating organization to any debt securities, preferred stock or other obligations of the Company as of the Applicable Time shall not have been lowered since the Applicable Time, and (v) any Securities for which application has been made to list on a national securities exchange shall have been approved for listing, subject to official notice of issuance.
(b) At the Closing Time you shall have received:
(1) The opinion, dated as of the Closing Time, of the General Counsel of the Company or another counsel reasonably satisfactory to the Underwriters, in form and substance satisfactory to you, to the effect that:
(i) The Registration Statement is effective under the 1933 Act; any required filing of the Base Prospectus, any Preliminary Prospectus and the Final Prospectus Supplement, and any supplements thereto, pursuant to Rule 424(b) under has been made in the Securities Act manner and within the applicable time period prescribed for each such filing required by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereofRule 424(b); and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for knowledge of such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i));
(b) No counsel, no stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the notice objecting to its use of the Prospectus or any Issuer Free Writing Prospectus shall have has been issued, and no proceeding proceedings for that purpose shall have been initiated instituted or threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and other financial 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 1933 Act, the 1934 Act and the 1939 Act and the respective rules thereunder.
(ii) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with corporate power and authority to own its properties and conduct its business as described in the Registration Statement, the Disclosure Package and the Final Prospectus Supplement, and, to the best of such counsel’s knowledge, is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification and in which the failure so to qualify and be in good standing would have a material adverse effect upon the Company.
(iii) The Company’s authorized equity capitalization is as set forth in the Registration Statement, the Disclosure Package and the Final Prospectus, and the Securities and the Indenture conform to the descriptions thereof contained in the Registration Statement, the Disclosure Package and the Final Prospectus.
(iv) To the best knowledge of such counsel, there is no pending or threatened by action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Commission, and no notice Company of objection of the Commission a character required to the use of be disclosed in the Registration Statement or the Final Prospectus which is not adequately disclosed therein, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Final Prospectus, or to be filed as an exhibit to the Registration Statement, which is not described or filed as required.
(v) This Agreement (including the Terms Agreement), any postDelayed Delivery Contracts and the Indenture have been duly authorized, executed and delivered by the Company.
(vi) The Indenture has been duly qualified under the 1939 Act; and the Securities have been duly authorized for issuance and sale by the Company. The Indenture constitutes a valid and binding agreement enforceable against the Company in accordance with its terms, except to the extent enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general equity principles (regardless of whether enforcement is considered in a proceeding at law or in equity) and except further as enforcement thereof shall be limited by (A) requirements that a claim with respect to any Securities payable other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in a foreign currency or currency units or payments outside the United States; and the Securities are in the form contemplated by the Indenture and the Securities, when executed and authenticated in accordance with the provisions of the Indenture and when issued and delivered to you and paid for by you pursuant to the Terms Agreement, including the provisions of this Agreement, or by purchasers proposed by the Underwriters and previously approved by the Company pursuant to any Delayed Delivery Contracts, will be valid and binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, except to the extent enforcement of the Securities may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and
(ii) general equity principles (regardless of whether enforcement is considered in a proceeding at law or in equity) and except further as enforcement thereof shall be limited by (A) requirements that a claim with respect to any Securities payable other than in U.S. dollars (or a foreign currency or foreign currency unit judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or (B) governmental authority to limit, delay or prohibit the making of payments in foreign currency or currency units or payments outside the United States.
(vii) No filing with, consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the 1933 Act, the 1934 Act, and the 1939 Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained.
(viii) Neither the issuance and sale of the Securities, nor the execution and delivery of this Agreement and the performance of the obligations and the consummation of the transactions herein contemplated will conflict with, result in a breach of, or constitute a default under the certificate of incorporation or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company is a party or bound and which are material to the business, operations or financial condition of the Company, or any applicable law, statute, rule, order or regulation known to such counsel to be applicable to the Company of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company.
(ix) Each document, if any, filed pursuant to the 1934 Act (other than the financial statements and other financial information included therein, as to which no opinion need be rendered) and incorporated by reference in the Registration Statement, the Base Prospectus or the Final Prospectus Supplement complied when so filed as to form in all material respects with the 1934 Act and the rules and regulations thereunder.
(x) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the net proceeds thereof as described in the Disclosure Package and the Final Prospectus Supplement, will not be an “investment company” as defined in the 1940 Act. In rendering the above opinion, such counsel shall additionally state that, based on his examination of the Registration Statement, the Disclosure Package, the Final Prospectus Supplement and each amendment thereof or supplement thereto and his discussions with officers and representatives of the Company in the course of participating in the preparation of such documents, although he is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package, the Final Prospectus Supplement and each amendment thereof or supplement thereto (except to the extent provided in subsection (b)(1)(iii) of this Section), on the basis of the foregoing, nothing has come to his attention that would lead him to believe that the Registration Statement, at any deemed effective amendment thereto date with respect to the Underwriters pursuant to Rule 401(g)(2430B(f)(2) under the Securities 1933 Act or at the date of any Terms Agreement contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted 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 or that the Final Prospectus, or any amendment or supplement thereto, at the time the Final Prospectus Supplement was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no such statement need be made by such counsel with respect to the financial statements and other financial data included in the Registration Statement, the Disclosure Package or the Final Prospectus or in any amendment or supplement thereto, or any statement contained in or omitted from the documents referred to therein in reliance upon and in conformity with written information furnished by the Underwriters through you specifically for use in the Registration Statement, the Disclosure Package or the Final Prospectus). In rendering the opinion required by subsection (b)(1) of this Section, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the state in which he is admitted to practice law, the Delaware General Corporation Law or the laws of the United States and as to any other matter to which you consent (which consent shall have been received;not be unreasonably withheld), to the extent specified in such opinion, upon the opinion of other counsel of good standing whom such counsel believes to be reliable (including Sidley Austin LLP, counsel for the Underwriters) and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact on certificates of officers and representatives of the Company and of public officials, and will not be required to verify independently the accuracy or completeness of information or documents furnished to such counsel with respect to the Registration Statement, the Disclosure Package or the Final Prospectus.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters hereunder shall be subject, in to purchase the discretion Securities under this Agreement on any Closing Date is subject to the satisfaction of each of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus All the representations and warranties of the Prospectus Issuers contained in this Agreement shall be true and correct as of the Time of Sale and on such Closing Date with the same force and effect as if made as of the Time of Sale and on and as of such Closing Date. The Issuers shall have been filed performed or complied with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each such filing by the rules all of their agreements herein contained and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed performed or complied with the Commission pursuant by them at or prior to Rule 433(d)(5)(i));such Closing Date.
(bi) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issuedissued and no 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, (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 initiated commenced or shall be pending or threatened by which would, in your reasonable judgment, make it impracticable or inadvisable to market the Commission, and no notice of objection Securities or to enforce contracts for the sale of the Commission Securities.
(c) Subsequent to the use execution and delivery of this Agreement and prior to such 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 Registration Statement or possible change, in the rating accorded any post-effective amendment thereto pursuant to Issuer’s debt by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 401(g)(2436(g)(2) under the Act.
(d) (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 (A) borrowings or obligations arising from sales or repurchases of mortgages by the subsidiaries engaged in the financial services segment in the ordinary course of business and (B) those set forth or contemplated in the Registration Statement, the Time of Sale Information and the Prospectus.
(e) You shall have received on such Closing Date a certificate, dated such Closing Date, signed by (i) Xxxxxx X. Xxxxxx or Xxxxxx X. Xxxxxxx and (ii) Xxxx X. Xxxxx or Xxxxxx X. Xxxxx 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) You shall have received on such Closing Date letters (satisfactory to you and counsel for the Underwriters), dated such Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel for the Company, to the effect set forth on Exhibit A hereto.
(g) You shall have received on such Closing Date letters, dated such Closing Date, of Xxxxxx Xxxxxx and Xxxxxxx llp, counsel for the Underwriters, in form and substance satisfactory to the Underwriters.
(h) You shall have received letters on and as of the date of this Agreement and such Closing Date, in form and substance satisfactory to you, from each of Pricewater-houseCoopers LLP and Ernst & Young LLP, each an independent registered public accounting firm, with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Information (including the Preliminary Prospectus) and the Prospectus. You shall have received a letter on and as of the date of the Time of Sale, in form and substance satisfactory to you, from PricewaterhouseCoopers LLP, with respect to certain financial information contained in the final term sheet attached as Exhibit C hereto.
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements in the Time of Sale Information and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus or (ii) since such date 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 general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Act being delivered on such Closing Date on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(j) Each of the Securities to be issued on such Closing Date and the Underlying Shares related thereto shall have been received;authorized for listing on the New York Stock Exchange, subject only to notice of official issuance.
(k) The Company has furnished or will furnish to you the executed “lock-up” letters from of the Company’s directors and executive officers, in the form of Exhibit D hereto.
(l) The Issuers shall have furnished to you such other documents and certificates as to the 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.
(m) You shall have been furnished with such additional documents and certificates 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 hereunder shall be subject, in the discretion of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus and the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Final Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i));
(b) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, and no proceeding for that purpose shall have been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been receivedreceived by the Company;
(c) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, shall have furnished to the Representatives their written opinion and negative assurance letter, dated the Time of Delivery, in form and substance substantially in the form set forth in Schedule IV hereto;
(d) Robins, Kaplan, Xxxxxx & Xxxxxx L.L.P., Minnesota counsel for the Company, shall have furnished to the Representatives their written opinion, dated the Time of Delivery, in form and substance substantially in the form set forth in Schedule V hereto;
(e) Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to the Representatives their written opinion and negative assurance letter, dated the Time of Delivery, with respect to the validity of the Indenture and the Securities, the Registration Statement, the Disclosure Package, the Prospectus, and other related matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters;
(f) On the date of this Agreement and at the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a “comfort” letter or letters, dated the date hereof and the Time of Delivery, respectively, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Disclosure Package and the Prospectus; provided that the letter delivered at the Time of Delivery shall use a “cut-off” date no more than three business days prior to the Time of Delivery;
(g) Since the respective dates as of which information is given in the Disclosure Package and the Prospectus, there shall not have been a material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as described in the Disclosure Package and the Prospectus (excluding any amendment or supplement thereto), the effect of which is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus;
(h) On or after the date of this Agreement 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; (ii) a suspension or material limitation in trading of any securities issued by the Company; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (v) the occurrence of any other calamity or crisis affecting the financial markets of the United States, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impractical or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus;
(i) On or after the date of this Agreement and prior to the Time of Delivery (i) no downgrading shall have occurred in the rating assigned to the Company’s debt securities by Standard and Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies, Inc., or Xxxxx’x Investors Service, Inc. and (ii) neither of these rating organizations shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Company’s debt securities, the effect of which, in any event specified in clause (i) or (ii), in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus; and
(j) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery a certificate of the Company signed by an officer of the Company reasonably satisfactory to the Representatives as to (i) the accuracy of the representations and warranties of the Company herein as of the Time of Delivery, (ii) the performance by the Company of all of its obligations hereunder to be performed at or prior to the Time of Delivery and (iii) the matters set forth in Sections 7(b) and 7(g) hereof.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters hereunder shall be subject, in Underwriter to purchase the discretion Securities under this Agreement are subject to the satisfaction of each of the Representatives, to following conditions:
(ia) All the condition that all representations and warranties of the Company herein are contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions:Closing Date.
(ab) Any Preliminary Prospectus and the The Prospectus shall have been filed with the Commission pursuant to in the manner and within the time period required by Rule 424(b) under the Securities Act within Act, and at the applicable time period prescribed for each such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i));
(b) No Closing Date no stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no proceeding proceedings for that purpose shall have been initiated commenced or threatened shall be pending before or, to the best knowledge of the Company, contemplated by the Commission, .
(c) The Final Term Sheet and no notice of objection of any other material required to be filed by the Commission to the use of the Registration Statement or any post-effective amendment thereto Company pursuant to Rule 401(g)(2433(d) under the Securities Act Act, shall have been received;filed with the Commission within the applicable time periods prescribed for such filings under Rule 433.
(d) Subsequent to the execution and delivery of this Agreement and prior to 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 of the Company’s securities by any “nationally recognized statistical rating organization”, as such term is defined under Section 3(a)(62) of the Exchange Act.
(i) Since the date of the latest balance sheet included in the Registration Statement 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, except as set forth or contemplated in the Registration Statement and the Prospectus, (ii) since the date of the latest balance sheet included in the Registration Statement and the Prospectus there shall not have been any material adverse change, or any development involving a prospective material adverse change, in the capital stock or in the long-term debt of the Company from that set forth or contemplated in the Registration Statement and Prospectus, (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 reflected in the Registration Statement and the Prospectus, and (iv) on the Closing Date the Underwriter shall have received a certificate dated the Closing Date, signed by the Treasurer of the Company, confirming the matters set forth in paragraphs (a), (b), (c), (d) and (e) (i) – (iii) of this Section 9.
(f) The Underwriter shall have received on the Closing Date an opinion (reasonably satisfactory to the Underwriter and counsel for the Underwriter, as applicable) dated the Closing Date, of the Chief Counsel, Corporate Advisory, Securities and Transactions, or the General Counsel of the Company or such other person as the Underwriter and the Company may agree. The opinion of such counsel shall be rendered to the Underwriter at the request of the Company and shall so state therein.
(g) The Underwriter shall have received on the Closing Date an opinion (reasonably satisfactory to the Underwriter and counsel for the Underwriter, as applicable), dated the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel to the Company.
(h) The Underwriter shall have received on the Closing Date an opinion, dated the Closing Date, of Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriter, covering such matters as the Underwriter may request.
(i) The Underwriter shall have received letters on and as of the date hereof and on and as of the Closing Date, in form and substance satisfactory to the Underwriter, from Ernst & Young LLP, independent public accountants, with respect to the financial statements and certain financial information of the Company contained in the Registration Statement, any preliminary prospectus and the Prospectus.
(j) The Company shall not have failed at or prior to the Closing Date to perform or comply with any of the agreements herein contained and required to be performed or complied with by the Company at or prior to the Closing Date.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters hereunder shall be subject, in to purchase the discretion Securities under this Agreement is subject to the satisfaction of each of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus All the representations and warranties of the Prospectus 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 Issuers shall have been filed performed or complied with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each such filing by the rules all of their agreements herein contained and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed performed or complied with by them at or prior to the Commission pursuant to Rule 433(d)(5)(i));Closing Date.
(bi) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issuedissued and no 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, (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 initiated commenced or shall be pending or threatened by which would, in your reasonable judgment, make it impracticable or inadvisable to market the Commission, and no notice of objection Securities or to enforce contracts for the sale of the Commission Securities.
(c) Subsequent to the use execution and delivery of this Agreement and prior to 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 Statement, the Time of Sale Information and the Prospectus there shall not have been any material adverse change, or any postdevelopment 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-effective amendment thereto pursuant 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 Rule 401(g)(2the 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) under You shall have received on the Closing Date a certificate, dated the Closing Date, signed by (i) Xxxxxx X. Xxxxxx or Xxxxxx X. Xxxxxxx 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) You shall have received on the Closing Date letters (satisfactory to you and counsel for the Underwriters), dated the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel for the Company, in the form previously agreed between such special counsel and counsel for the Underwriters.
(g) You 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) You shall have received letters on and as of the date of this Agreement and the Closing Date, in form and substance satisfactory to you, from PricewaterhouseCoopers LLP, an independent registered public accounting firm, with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Information (including the Preliminary Prospectus) and the Prospectus.
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements in the Time of Sale Information and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus or (ii) since such date 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 general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Act being delivered on the Closing Date on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(j) The Issuers shall have furnished to you such other documents and certificates as to the 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 received;furnished with such additional documents and certificates 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 hereunder shall be subject, in the discretion of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus and the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Final Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i));
(b) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, and no proceeding for that purpose shall have been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been receivedreceived by the Company;
(c) Xxxxxx &Whitney LLP, counsel for the Company, shall have furnished to the Representatives their written opinion and negative assurance letter, dated the Time of Delivery, in form and substance substantially in the form set forth in Schedule IV hereto;
(d) Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to the Representatives their written opinion and negative assurance letter, dated the Time of Delivery, with respect to the validity of the Indenture and the Securities, the Registration Statement, the Disclosure Package, the Prospectus, and other related matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters;
(e) On the date of this Agreement and at the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a “comfort” letter or letters, dated the date hereof and the Time of Delivery, respectively, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Disclosure Package and the Prospectus; provided that the letter delivered at the Time of Delivery shall use a “cut-off” date no more than three business days prior to the Time of Delivery;
(f) Since the respective dates as of which information is given in the Disclosure Package and the Prospectus, there shall not have been a material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as described in the Disclosure Package and the Prospectus (excluding any amendment or supplement thereto), the effect of which is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus;
(g) On or after the date of this Agreement 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; (ii) a suspension or material limitation in trading of any securities issued by the Company; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (v) the occurrence of any other calamity or crisis affecting the financial markets of the United States, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impractical or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus;
(h) On or after the date of this Agreement and prior to the Time of Delivery (i) no downgrading shall have occurred in the rating assigned to the Company’s debt securities by Standard and Poor’s Rating Services, a division of The XxXxxx-Xxxx Companies, Inc., or Xxxxx’x Investors Service, Inc. and (ii) neither of these rating organizations shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Company’s debt securities, the effect of which, in any event specified in clause (i) or (ii), in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus; and
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery a certificate of the Company signed by an officer of the Company reasonably satisfactory to the Representatives as to (i) the accuracy of the representations and warranties of the Company herein as of the Time of Delivery, (ii) the performance by the Company of all of its obligations hereunder to be performed at or prior to the Time of Delivery and (iii) the matters set forth in Sections 7(b) and 7(f) hereof.
Appears in 1 contract
Conditions of Underwriters’ Obligation. The obligations obligation of the Underwriters hereunder shall be subject, in to purchase the discretion Securities under this Agreement is subject to the satisfaction of each of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus All the representations and warranties of the Prospectus 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 Issuers shall have been filed performed or complied with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each such filing by the rules all of their agreements herein contained and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed performed or complied with by them at or prior to the Commission pursuant to Rule 433(d)(5)(i));Closing Date.
(bi) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issuedissued and no 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, (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 initiated commenced or shall be pending or threatened by which would, in your reasonable judgment, make it impracticable or inadvisable to market the Commission, and no notice of objection Securities or to enforce contracts for the sale of the Commission Securities.
(c) Subsequent to the use execution and delivery of this Agreement and prior to 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 Statement, the Time of Sale Information and the Prospectus there shall not have been any material adverse change, or any postdevelopment 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-effective amendment thereto pursuant 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 Rule 401(g)(2the 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) under You shall have received on the Closing Date a certificate, dated the Closing Date, signed by (i) Xxxxxx X. Xxxxxx or Xxxxxx X. Xxxxxxx and (ii) Xxxx X. Xxxxx or Xxxxxx X. Xxxxx 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) You shall have received on the Closing Date letters (satisfactory to you and counsel for the Underwriters), dated the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel for the Company, in the form previously agreed between such special counsel and counsel for the Underwriters.
(g) You 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) You shall have received letters on and as of the date of this Agreement and the Closing Date, in form and substance satisfactory to you, from PricewaterhouseCoopers LLP, an independent registered public accounting firm, with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Information (including the Preliminary Prospectus) and the Prospectus.
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements in the Time of Sale Information and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus or (ii) since such date 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 general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Act being delivered on the Closing Date on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(j) The Issuers shall have furnished to you such other documents and certificates as to the 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 received;furnished with such additional documents and certificates 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 hereunder shall be subject, in to purchase the discretion Securities under this Agreement is subject to the satisfaction of each of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus All the representations and warranties of the Prospectus 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 Issuers shall have been filed performed or complied with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each such filing by the rules all of their agreements herein contained and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed performed or complied with by them at or prior to the Commission pursuant to Rule 433(d)(5)(i));Closing Date.
(bi) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued and no 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,
(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 initiated commenced or shall be pending or threatened by which would, in your reasonable judgment, make it impracticable or inadvisable to market the Commission, and no notice of objection Securities or to enforce contracts for the sale of the Commission Securities.
(c) Subsequent to the use execution and delivery of this Agreement and prior to 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 Statement, the Time of Sale Information and the Prospectus there shall not have been any material adverse change, or any postdevelopment 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-effective amendment thereto pursuant 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 Rule 401(g)(2the 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) under You shall have received on the Closing Date a certificate, dated the Closing Date, signed by (i) Xxxxxx X. Xxxxxx or Xxxxxx X. Xxxxxxx and (ii) Xxxx X. Xxxxx or Xxxxxx X. Xxxxx 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) You shall have received on the Closing Date letters (satisfactory to you and counsel for the Underwriters), dated the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel for the Company, in the form previously agreed between such special counsel and counsel for the Underwriters.
(g) You 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) You shall have received letters on and as of the date of this Agreement and the Closing Date, in form and substance satisfactory to you, from PricewaterhouseCoopers LLP, an independent registered public accounting firm, with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Information (including the Preliminary Prospectus) and the Prospectus.
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements in the Time of Sale Information and the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus or (ii) since such date 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 general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities Act being delivered on the Closing Date on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.
(j) The Issuers shall have furnished to you such other documents and certificates as to the 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 received;furnished with such additional documents and certificates 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 Underwriters to purchase and pay for the Underwriters hereunder Notes on the Issuance Date shall be subject, subject to the accuracy in the discretion all material respects of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as Transferor and ILC herein, in each of the Time Basic Documents, to the performance by Transferor and ILC in all material respects of Delivery true and correct, (ii) the condition that the Company shall have performed all of its their obligations hereunder theretofore and to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus Transferor and ILC shall each have delivered a certificate (an "Officer's Certificate"), dated the Issuance Date, signed by one of its Authorized Officers to the effect that:
(i) the representations and warranties made by Transferor or ILC, as applicable, in this Agreement and the Prospectus shall have been filed with Basic Documents (the Commission pursuant to Rule 424(b"Transaction Documents") under are true and correct in all material respects at and as of the Securities Act within the applicable time period prescribed for each date of such filing by the rules Officer's Certificate as if made on and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating as of such date (except to the Securities shall have been filed with the Commission pursuant extent they expressly relate to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i)an earlier date);
(bii) No Transferor or ILC (as the case may be) has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under the Transaction Documents at or prior to the date of such Officer's Certificate;
(iii) nothing has come to such officer's attention that would lead such officer 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 part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, and no 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) Underwriters shall have received from counsel to ILC and Transferor, favorable opinions (subject to customary and usual qualifications), dated the Issuance Date and reasonably satisfactory in form and substance to Underwriters and their counsel with respect to, or to the effect that, among other things: (i) the due formation and qualification of each of Transferor and ILC and that Transferor and ILC, as applicable, have the corporate power and authority to perform 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 Transferor and ILC; (iii) each of this Agreement and the other Transaction Documents are the legal, valid and binding obligation of Transferor and ILC, 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 initiated duly authorized, executed and delivered to Transferor and constitute the legal, valid and binding obligations of 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 of the Notes by Issuer, the sale of the Notes by Transferor, the performance of this Agreement by Transferor and ILC, the compliance by Transferor and ILC 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 Transferor or ILC, or to the best of any such counsel's knowledge, any other contracts to which Transferor or ILC 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 Transferor or ILC which would have a material adverse effect on the issuance of the Notes; (vii) if a court disregarded the intent of the parties and characterized the transfers as a pledge of collateral, each of the Contribution Agreement and the Pooling and Servicing Agreement and accompanying documentation creates a valid security interest in the Leases and the Equipment (or interests therein) under New York law; (viii) assuming no prior financing statements covering the Leases are in effect based on a review of certain UCC searches and that financing statements covering the Leases and naming (A) Transferor as secured party/purchaser and ILC as debtor/seller, (B) Transferor as debtor/seller and Issuer as secured party/purchaser and (c) Issuer as debtor and Indenture Trustee as secured party, in each case are being filed in the appropriate filing offices of the State of Ohio, (1) immediately after giving effect to the transfers contemplated by the CommissionContribution Agreement, Transferor has a first priority perfected interest in all right, title and interest of ILC in the Leases, (2) immediately after giving effect to the transfers contemplated by the Pooling and Servicing Agreement, Issuer has a first priority perfected interest in all right, title and interest of Transferor in the Leases, and no notice (3) immediately after giving effect to the grant contemplated by the Indenture, Indenture Trustee has a first priority perfected security interest in all right, title and interest of objection Issuer in the Leases; (ix) the Trust Agreement is not required to be qualified under Trust Indenture Act and the Trust is not required to be registered under the 1940 Act, (x) the Indenture has been duly qualified under the Trust Indenture Act, (xi) neither the Transferor nor Issuer is an "investment company" or a company "controlled by" an "investment company" within the meaning of the Commission 1940 Act and (xii) on the Issuance Date the Registration Statement is effective, and, that to the use best of such counsel's knowledge no stop order suspending the effectiveness of the Registration Statement has been issued or any post-effective amendment thereto pursuant is threatened, and that although such counsel is not passing on the factual accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus, nothing came to Rule 401(g)(2such counsel's attention that leads such counsel to believe that either the Registration Statement or the Prospectus (as of the Effective Date or the date of the 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 therein, in light of the circumstances under which they were made not misleading. In rendering such opinion, counsel may rely, to the Securities Act extent deemed proper and as stated therein, as to matters of fact on certificates of responsible officers of Transferor and ILC 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 Underwriters.
(c) Underwriters shall have received from Mayer, Brown & Platt, special counsel for Underwriters, such opxxxxx or opinioxx, xated the Issuance Date, with respect to the validity of the Notes, the Registration Statement, the Final Prospectus, true sale, nonconsolidation and other related matters as Underwriters may require.
(d) At the Execution Time and at the Issuance Date, Ernst & Young shall have furnished to Underwriters a letter or xxxxxrs, xxxxd the date of this Agreement and the Issuance Date, respectively, in form and substance satisfactory to Underwriters.
(e) The Class A-1 Notes shall have been received;rated at least P-1 and F1+/AAA, the Class A-2 notes shall have been rated at least AAA and AAA, the Class A-3 Notes shall have been rated at least AAA and AAA, the Class A-4 Notes shall have been rated at least AAA and AAA, and the Class B Notes shall have been rated at least AA and A by Moody's Investors Service, Inc. and Fitch IBCA, Inc., respectivxxx, xxich ratings shall not have been reduced or withdrawn as evidenced by the Officer's Certificate referred to in Section 6(a).
(f) Counsel to Indenture Trustee shall have delivered a favorable opinion (subject to customary and usual exceptions), dated the Issuance Date, and satisfactory in form and substance to Underwriters and counsel for Underwriters and to Transferor and ILC and their counsel with respect to, or to the effect that, among other things: (i) the due incorporation and valid existence of Indenture Trustee, (ii) the due authorization, execution and delivery by Indenture Trustee of the Indenture, (iii) the Indenture is the legal, valid and bending obligation of Indenture Trustee, enforceable against Indenture Trustee in accordance with its terms (subject to customary and usual exceptions), (iv) no approvals or filings with any Governmental Authority required in connection with the execution, delivery or performance by Indenture Trustee of the Indenture, (v) the execution, delivery and performance of the Indenture will not cause any default under Indenture Trustee's organizational documents or other contracts to which it is a party or by which it is bound and (vi) the Notes have been duly authenticated by Indenture Trustee in accordance with the terms of the Indenture.
(g) Counsel to Trustee shall have delivered a favorable opinion (subject to customary and usual exceptions), dated the Issuance Date, and satisfactory in form and substance to Underwriters and counsel for Underwriters and to Transferor and ILC and their counsel with respect to, or to the effect that: (i) the due incorporation and valid existence of Trustee, (ii) the due authorization, execution and delivery by Trustee of the Trust Agreement, (iii) the Trust Agreement is the legal, valid and bending obligation of Trustee, enforceable against Trustee in accordance with its terms (subject to customary and usual exceptions), (iv) no approvals or filings with any Governmental Authority required in connection with the execution, delivery or performance by Trustee of the Trust Agreement, (v) the execution, delivery and performance of the Trust Agreement will not cause any default under Trustee's organizational documents or other contracts to which it is a party or by which it is bound and (vi) the Trust has been duly formed and is validly existing as a statutory business trust under the laws of the State of Delaware, with full power and authority to execute, deliver and perform its obligations under each of the Basic Documents to which the Trust is a party.
(h) Underwriters shall have received the approval of each of their respective investment committees with respect to the execution, delivery and performance of this Agreement.
(i) All conditions precedent to the sale of the Certificates pursuant to the Certificate Purchase Agreement have been fulfilled, and the Certificates have been sold or will be sold concurrently with the sale of the Notes.
(j) 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 Underwriters, and Underwriters and their counsel shall have received such other information, certificates and documents as Underwriters or they may reasonably request.
Appears in 1 contract
Samples: Underwriting Agreement (Provident Lease Receivables Corp)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters hereunder shall be subject, in Underwriter to act as agent for the discretion Company are subject to the accuracy (as of the Representativesdate hereof, to (iand as of the Closing Date) of and compliance with the condition that all representations and warranties of the Company herein are as herein, to the accuracy of statements of officers of the Time of Delivery true and correctCompany made pursuant to the provisions hereof, (ii) to the condition that performance by the Company shall have performed all of its obligations hereunder theretofore hereunder, and to be performed and (iii) the following additional conditions:
(ai) Any Preliminary Prospectus and the Prospectus The Registration Statement shall have been filed with become effective not later than 5:00 p.m., Eastern time, on the Commission pursuant date of this Agreement, or at such later time or on such later date as you may agree to Rule 424(bin writing; (ii) under the Securities Act within the applicable time period prescribed for each such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating at or prior to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i));
(b) No Closing Date, no stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, issued by the Commission and no proceeding for that purpose shall have been initiated or threatened pending, or shall be threatened, or to the knowledge of the Company, contemplated by the 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 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 and any such authorities, and to the satisfaction of counsel to 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.
(b) At the Closing Date, since the respective dates as of which information is presented in the Registration Statement and the Prospectus, (i) there shall not have been any change in the capital stock of the Company or any material change in the long-term debt of the Company except as set forth in or contemplated by the Registration Statement, (ii) there shall not have been any material adverse change in the general affairs, management, financial position or results of operations of the Company, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement or Prospectus and (iii) the Company shall not have sustained any material interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement or Prospectus, if in the judgment of the Underwriter any such development referred to in clauses (i), (ii) or (iii) makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriter at the public offering price.
(c) Since the respective dates as of which information is presented in the Registration Statement and the Prospectus, there shall have been no litigation instituted against the Company or any of its officers or directors, and since such dates there shall be no proceeding instituted or threatened against the Company or any of its officers or directors, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and adversely affect the business, material properties, financial condition or results or operations of the Company.
(d) Each of the representations and warranties of the Company contained herein shall be true and correct as of this date and at the Closing Date as if made at the Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with.
(e) At the Closing Date, you shall have received the opinion, dated as of the Closing Date, from Nelsxx Xxxxxxx Xxxxx & Xcarborough, L.L.P., counsel for the Company, in form and substance satisfactory to counsel for the Underwriter, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own is properties and conduct its 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 its properties or conduct of its business requires such qualification;
(ii) to the best knowledge of such counsel; (a) the Company has obtained, or is in the 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) the Company is in all material respects complying therewith;
(iii) the authorized capitalization of the Company as of ______________ is as set forth under "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, validly issued, are fully paid and non-assessable and conform to the description thereof contained in the Prospectus; 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 Common Stock except as disclosed in the Prospectus; the Common Stock conforms to the description thereof contained in the Prospectus; the Shares have been duly authorized and, when issued, delivered and paid for, 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; and to the best of such counsel's knowledge, neither the filing of the Registration Statement nor the offering or sale of the Shares 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 of any shares of Common Stock;
(iv) this Agreement and the Escrow Agreement have been duly and validly authorized, executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by the Underwriter, are the valid and legally binding obligations of the Company, except no opinion is expressed as to the enforceability of the indemnity provisions or the contribution provisions contained in this Agreement;
(v) the certificates evidencing the shares of Common Stock are in valid and proper legal form;
(vi) such counsel knows of no pending or threatened legal or governmental proceedings to which the Company is a party which could materially adversely affect the business, property, financial condition or operations of the Company; or which question the validity of the Shares, this Agreement, or the Escrow Agreement or of any action taken or to be taken by the Company pursuant to this Agreement or the Escrow Agreement; and no such proceedings are known to such counsel to be contemplated against the Company; 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;
(vii) the Company is not in violation of or default under, nor will the execution and delivery of this Agreement or the Escrow Agreement, and the incurrence of the obligations herein and therein set forth and the consummation of the transactions herein or therein contemplated, result in a violation of, or constitute a default under the certificate of incorporation or by-laws, 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 contract, indenture, mortgage, loan agreement, lease, joint venture or other agreement or instrument to which the Company is a party or by which it or any of its properties may be bound or in violation of any material order, rule, regulation, writ, injunction, or decree of any government, governmental instrumentality or court, domestic or foreign;
(viii) 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 is in effect, and no notice of objection proceedings for that purpose have been instituted or 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) comply as to form in all material respects with the applicable requirements of the Commission Act and the Rules and Regulations;
(ix) such counsel has participated in the preparation of the Registration Statement and the Prospectus and nothing has come to the use attention of such counsel to cause such counsel to have reason to believe that the Registration Statement or any post-effective amendment thereto pursuant at the time it became effective contained any untrue statement of a material fact required to Rule 401(g)(2be stated therein 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 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 are made, not misleading (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);
(x) all descriptions in the Registration Statement and the Prospectus, and any amendment or supplement thereto, of contracts and other documents are accurate and fairly present the information required to be shown, and such counsel is familiar with all contracts and other documents 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 documents 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;
(xi) no authorization, approval, consent, or license of any governmental or regulatory authority or agency is necessary in connection with the authorization, issuance, transfer, sale or delivery of the Shares by the Company, in connection with the execution, delivery and performance of this Agreement by the Company or in connection with the taking of any action contemplated herein, other than registrations or qualifications of the Shares under applicable state or foreign securities or Blue Sky laws and registration under the Securities Act shall Act; and
(xii) the statements in the Registration Statement under the captions "Proposed Business," "Use of Proceeds," "Management," "Supervision and Regulation," and "Description of Capital Stock of the Company" have been received;reviewed by such counsel and insofar as they refer to descriptions of agreements, statements of law, descriptions of statutes, licenses, rules or regulations or legal conclusions, are correct in all material respect. 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 State of Georgia upon opinions of counsel satisfactory to you, in which case the opinion shall state that they have no reason to believe that you and they are not entitled to so rely.
Appears in 1 contract
Samples: Underwriting Agreement (Southeast Commerce Holding Co)
Conditions of Underwriters’ Obligation. The obligations of the Underwriters hereunder shall be subject, in the discretion of the Representatives, to (i) the condition that all representations and warranties of the Company herein are as of the Time of Delivery true and correct, (ii) the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and (iii) the following additional conditions:
(a) Any Preliminary Prospectus and the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for each such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; and the Pricing Final Term Sheet provided for in Section 5(b) hereof and any other Issuer Free Writing Prospectus relating to the Securities shall have been filed with the Commission pursuant to Rule 433 under the Securities Act within the applicable time period prescribed for such filing by Rule 433 and in accordance with Section 5(b) hereof (unless such Issuer Free Writing Prospectus is not required to be filed with the Commission pursuant to Rule 433(d)(5)(i));
(b) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued, and no proceeding for that purpose shall have been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have been receivedreceived by the Company;
(c) Xxxxxx &Whitney LLP, counsel for the Company, shall have furnished to the Representatives their written opinion and negative assurance letter, dated the Time of Delivery, in form and substance satisfactory to the Representatives;
(d) Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, shall have furnished to the Representatives their written opinion and negative assurance letter, dated the Time of Delivery, with respect to the validity of the Indenture and the Securities, the Registration Statement, the Disclosure Package, the Prospectus, and other related matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters;
(e) On the date of this Agreement and at the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a “comfort” letter or letters, dated the date hereof and the Time of Delivery, respectively, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Disclosure Package and the Prospectus; provided that the letter delivered at the Time of Delivery shall use a “cut-off” date no more than three business days prior to the Time of Delivery;
(f) Since the respective dates as of which information is given in the Disclosure Package and the Prospectus, there shall not have been a material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position or results of operations of the Company and its subsidiaries, taken as a whole, otherwise than as described in the Disclosure Package and the Prospectus (excluding any amendment or supplement thereto), the effect of which is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus;
(g) On or after the date of this Agreement 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; (ii) a suspension or material limitation in trading of any securities issued by the Company; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (v) the occurrence of any other calamity or crisis affecting the financial markets of the United States, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impractical or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus;
(h) On or after the date of this Agreement and prior to the Time of Delivery (i) no downgrading shall have occurred in the rating assigned to the Company’s debt securities by S&P Global Ratings or Xxxxx’x Investors Service, Inc. and (ii) neither of these rating organizations shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Company’s debt securities, the effect of which, in any event specified in clause (i) or (ii), in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Disclosure Package and the Prospectus; and
(i) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery a certificate of the Company signed by an officer of the Company reasonably satisfactory to the Representatives as to (i) the accuracy of the representations and warranties of the Company herein as of the Time of Delivery, (ii) the performance by the Company of all of its obligations hereunder to be performed at or prior to the Time of Delivery and (iii) the matters set forth in Sections 7(b) and 7(f) hereof.
Appears in 1 contract
