Conditions of Underwriters’ Obligations The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company contained herein or in certificates of any officer of the Company or any of its subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions:
Conditions to Underwriters’ Obligations The several obligations of the Underwriters hereunder are subject to the accuracy of and compliance with the representations and warranties of the Bank contained in Section 1 as of the date hereof and the Closing Date (and the Bank shall be deemed expressly to have represented and warranted as of the Closing Date that the representations and warranties contained in Section 1 are true and correct and that it has complied with such representations and warranties), and to the following further conditions:
Conditions to the Underwriters’ Obligations The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 15c3-1(c)(2)(vi)(F) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Offered Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit A hereto.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx P.C, Xxxxxxxx Islands counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxx LLP, special U.S. maritime environmental counsel and Liberian counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and statement of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, with respect to such matters as may be requested by the Underwriters.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The Offered Shares shall have been approved for listing on the NYSE, and satisfactory evidence thereof shall have been provided to you.
(i) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(j) The “lock-up” agreements, each substantially in the form of Exhibit D hereto, between you and Genco and each officer and director of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date. The several obligations of the Underwriters to purchase Optional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Optional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Optional Shares.
Conditions of the Underwriters’ Obligations The respective obligations of the several Underwriters hereunder to purchase the Securities are subject to the accuracy, as of the date hereof, at the Closing Date and on each Option Closing Date (as if made on the Closing Date or such Option Closing Date, as applicable), of and compliance in all material respects with all representations, warranties and agreements of the Company contained herein, the performance by the Company of its obligations hereunder and the following additional conditions:
(a) If filing of the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or 164(b) under the Securities Act); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462 Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; any request of the Commission or an Underwriter for additional information (to be included in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Shares and the Warrant Shares shall be qualified for listing on the NASDAQ Capital Market.
(c) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(d) None of the Underwriters shall have reasonably determined, and advised the Company, that the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in such Underwriter’s reasonable opinion, is material, or omits to state a fact which, in such Underwriter’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(e) On the Closing Date, there shall have been furnished to the Underwriters the opinion and negative assurance letter of Xxxxxxx Procter LLP, outside corporate counsel for the Company dated the Closing Date, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(f) On the Closing Date and on each Option Closing Date, there shall have been furnished to the Underwriters the negative assurance letter of Xxxxxxxxxx Xxxxxxx PC, counsel to the Underwriters, dated the Closing Date or the Option Closing Date, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(g) The Underwriters shall have received a letter of KPMG LLP on the date hereof and on the Closing Date and on each Option Closing Date, addressed to the Underwriters, confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and confirming, as of the date of each such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Time of Sale Disclosure Package, as of a date not prior to the date hereof or more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters required by the Underwriters.
(h) On the Closing Date and on each Option Closing Date, there shall have been furnished to the Underwriters a certificate, dated the Closing Date and each Option Closing Date, and addressed to the Underwriters, signed by the chief executive officer and the chief financial officer of the Company, in their capacity as officers of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement that are qualified by materiality or by reference to any Material Adverse Effect are true and correct in all respects, and all other representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made at and as of the Closing Date and the Option Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or the Option Closing Date, as applicable;
(ii) No stop order or other order (A) suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof, (B) suspending the qualification of the Securities for offering or sale, or (C) suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued, and no proceeding for that purpose has been instituted or, to their knowledge, is contemplated by the Commission or any state or regulatory body; and
Modifications and Waivers; Obligation of the Company Absolute The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of at least a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, places and rate, and in the coin or currency, herein prescribed.
CONDITIONS TO THE DEALER MANAGER’S OBLIGATIONS The Dealer Manager’s obligations hereunder shall be subject to the following conditions, and if all such conditions are not satisfied or waived by the Dealer Manager on or before the applicable date set forth below or at any time thereafter until the Termination Date (as defined in Section 10(a)), then the Dealer Manager is not obligated hereunder and no funds shall be released (1) from the Escrow Account if the Dealer Manager provides notice to this effect to the Company and the Escrow Agent, and (2) from the Deposit Account if the Dealer Manager provides notice to this effect to the Company and the Depository Bank:
(a) The representations and warranties on the part of the Company and the Advisor contained in this Agreement hereof shall be true and correct in all material respects and the Company and the Advisor shall have complied with their covenants, agreements and obligations contained in this Agreement in all material respects.
(b) The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement shall have been issued by the Commission and, to the best knowledge of the Company and the Advisor, no proceedings for that purpose shall have been instituted, threatened or contemplated by the Commission; and any request by the Commission for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Dealer Manager.
(c) The Registration Statement and the Prospectus, and any amendment or any supplement thereto, shall not contain any untrue statement of material fact, or omit to state a material fact required to be stated therein in light of the circumstances under which they are made, or necessary to make the statements therein not misleading.
(d) On the initial Effective Date and at or prior to the fifth business day following the Effective Date of each post-effective amendment to the Registration Statement that includes or incorporates by reference the audited financial statements for the preceding fiscal year, the Dealer Manager reserves the right to receive from Gxxxx Xxxxxxxx LLP, or other such independent registered public accountants for the Company, (i) a letter, dated the applicable date, addressed to the Dealer Manager, in form and substance satisfactory to the Dealer Manager, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to placement agents or dealer managers, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited financial statements and certain financial information contained in the Registration Statement and the Prospectus, and (ii) confirming that they are (A) independent registered public accountants as required by the Securities Act, and (B) in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X.
(e) At or prior to the fifth business day following (i) the request by the Dealer Manager in connection with any third party due diligence investigation, and (ii) the Effective Date of each post-effective amendment to the Registration Statement (other than post-effective amendments filed solely pursuant to Rule 462(d) under the Securities Act and other than the post-effective amendments referred to in Section 4(d) ), the Dealer Manager shall have received from Gxxxx Xxxxxxxx LLP or such other independent public or certified public accountants for the Company, a letter, dated such date, in form and substance satisfactory to the Dealer Manager, to the effect that they reaffirm the statements made in the most recent letter furnished pursuant to Section 4(d), except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the date of the letter furnished pursuant to this Section 4(e).
(f) On the Effective Date the Dealer Manager shall have received the opinion of Proskauer Rose LLP acting as counsel for the Company, and a supplemental “negative assurances” letter from such counsel, dated as of the Effective Date, and in the form and substance reasonably satisfactory to the Dealer Manager.
(g) At or prior to the Effective Date and at or prior to the fifth business day following the effective date of each post-effective amendment to the Registration Statement (other than post-effective amendments filed solely pursuant to Rule 462(d) under the Securities Act), the Dealer Manager shall have received a written certificate executed by the Chief Executive Officer or President of the Company and the Chief Financial Officer of the Company, dated as of the applicable date, to the effect that: (i) the representations and warranties of the Company and the Advisor set forth in this Agreement are true and correct in all material respects with the same force and effect as though expressly made on and as of the applicable date; and (ii) the Company and the Advisor have complied in all material respects with all the agreements hereunder and satisfied all the conditions on their part to be performed or satisfied hereunder at or prior to the applicable date.
Conditions of Manager’s Obligations The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time of Sale and as of any Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(i) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties 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, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, 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 Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On every date specified in Section 4(p) hereof, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effect.
(g) On every date specified in Section 4(r) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Conditions of Termination a. COMPANY may terminate this Agreement in the event LESSEE breaches any of the terms, obligation, or provisions of this Agreement, or ceases to operate the Vehicle under the trade name(s) “ ”.
b. This Agreement may be terminated at any time by mutual agreement of the parties.
c. LESSEE may termination this agreement without cause at any time upon ____ days’ written notice to COMPANY. LESSEE agrees that for a period of ____ days from LESSEE’s notice that LESSEE intends to terminate or cancel this agreement, LESSEE will not operate a vehicle that could compete to service parties with whom COMPANY has written agreements, except as authorized under this Agreement, provided that this restriction will not prevent LESSEE from providing ground transportation services for the general public.
d. If at any time COMPANY believes LESSEE cannot, will not, or has not been performing pursuant to the terms of this Agreement, COMPANY may (as an alternative to immediate cancellation) temporarily revoke LESSEE’s right to operate the Vehicle under this Agreement for a period of time sufficient to investigate COMPANY’s belief. Such temporary revocation by COMPANY’s shall not waive COMPANY’s right to terminate this Agreement as herein provided.
e. LESSEE agrees to be tested for the illegal use of controlled substances, or for blood alcohol level. LESSEE may be tested on a random, volunteer, “reason to believe”, or post-accident basis. Refusal to test is breach of this Agreement and grounds for cancellation of this Agreement.
f. This Agreement may be cancelled at any time by the COMPANY if COMPANY has a good faith belief that LESSEE may present an unreasonable risk of harm to passengers or others.
g. LESSEE agrees that if LESSEE believes or contends COMPANY has breached, or is in any way breaching this Agreement, LESSEE shall immediately notify COMPANY in writing the facts giving rise to the alleged breach. If written notice is not given within 30 days of LESSEE’s awareness of those facts, LESSEE waives, for all purposes, any breach based upon those facts.
h. After the initial term, this Agreement may be cancelled by COMPANY, without cause, with 30 days notice to LESSEE.
i. If Lessee does not operate the Vehicle under this Agreement for a period of 30 days, COMPANY may terminate this Agreement without notice to LESSEE.
HIRER’S OBLIGATIONS a) The Hirer acknowledges having received the Vehicle in a clean condition, with a full fuel tank and full bottle of gas (if applicable). The Hirer will return the Vehicle in a clean condition with a full fuel tank and a full bottle of gas (if applicable, and subject to any pre-purchase fuel and/or pre- purchase gas option being taken), on the Return Date at the time and at the Return Point set out in the Rental Agreement.
b) The Hirer must ensure that all reasonable care is taken in handling and parking the Vehicle and that it is left securely locked when not in use.
c) The Hirer must ensure that the recommended levels are maintained with respect to the water in the radiator and battery, the oil and the tyre pressures of the Vehicle.
d) Smoking and/or animals (excluding registered guide or assistance dogs) are not permitted in the Vehicle at any time. If this condition is breached, the Hirer must pay to JUCY a cleaning fee determined by JUCY in its reasonable opinion and being not more than $250.
e) The Hirer must ensure that all Authorised Drivers comply with, and all Authorised Drivers shall be bound by, these terms and conditions and all Authorised Drivers must carry their driver’s licence with them when driving the Vehicle.
f) In the event of any new damage to the Vehicle, the Hirer must notify JUCY of the full circumstances of the damage as soon as practicable (being not more than 48 hours) from the time the Hirer has knowledge of the damage.
g) If there is an equipment defect or mechanical failure of the Vehicle during the Term of Hire, the Hirer must notify JUCY as soon as practicable, and in any event within 48 hours, from the time the Hirer has knowledge of the defect or failure to give JUCY the opportunity to rectify the problem during the Term of Hire. JUCY does not accept liability for any claims submitted after this period.
h) The Hirer must ensure that a copy of this Agreement is kept in the Vehicle throughout the Term of Hire and produced without delay for inspection on demand by an enforcement officer
i) The Hirer shall not:
i) drive or use the Vehicle (or permit the Vehicle to be driven or used) otherwise than in a prudent and cautious manner. For the purposes of these terms and conditions, a single Vehicle rollover shall be considered a breach of this clause 6(i) unless the Stress Free Plus excess reduction has been taken out;
Additional Conditions to the Obligations of the Company The obligation of the Company to consummate and effect the Merger shall be subject to the satisfaction at or prior to the Closing Date of each of the following conditions, any of which may be waived, in writing, exclusively by the Company:
