Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates): (a) The Company shall have requested and caused each of Xxxxxx & Bird LLP and Xxxxxxx LLP, counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in each case in the form and substance as set forth in Exhibit B hereto. (b) The Company shall have requested and caused Xxxxxx & Bird LLP, tax counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto. (c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of Ropes & Gray LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters. (d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company and the Manager, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that: (i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part that are respectively required to be performed or satisfied by them at or prior to the Closing Time or the Option Closing Time, as applicable; (ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act; (iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Initial Sale Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (iv) Since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth in the Disclosure Package or as described in such certificate, or in the ability of the Manager to perform its obligations under the Management Agreement. (e) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the Representatives. (f) The Company shall have requested and caused Xxxx Xxxxx LLP to have furnished to the Underwriters at the Execution Time a letter, dated as of the Execution Time, in form and substance heretofore approved by the Representatives. (g) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing. (h) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives; (iii) the Registration Statement 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; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (i) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule. (j) The Company shall have applied for listing of the Notes on the NYSE. (k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements. (l) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto). (m) Prior to the Closing Time and each Option Closing Time, the Company, the Operating Partnership and the Manager shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request. (n) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (o) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC. (p) The Company shall have furnished to the Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit D. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable by the Representatives (unless any such conditions have been waived in writing by the Representatives on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase accept delivery of and pay for the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject subject, at the option of the Representative, to the accuracy in all material respects of the representations representations, warranties and warranties agreements on the part of the CompanyCounty contained herein, the Operating Partnership and the Manager contained herein as of the date hereof and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, as of the Closing Time and each Option Closing TimeDate, to the accuracy in all material respects of the statements of the Company, officers and other officials of the Operating Partnership and the Manager County made in any certificates or other documents furnished pursuant to the provisions hereof, the Notes or the Resolution, and to the performance by the Company County of its obligations to be performed hereunder and under the Legal Documents, Notes and the Operating Partnership of their obligations hereunder Resolution on or prior to the Closing Date, and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates):conditions:
(a) The Company As of the Closing Date, the Legal Documents, the Notes and the Official Statement shall have requested been duly authorized, executed and caused each of Xxxxxx & Bird LLP and Xxxxxxx LLPdelivered by the respective parties thereto, counsel for in substantially the Company, to have furnished forms heretofore submitted to the Underwriters at Representative with only such changes as shall have been agreed to by the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicableRepresentative, and addressed said agreements shall not have been amended, modified or supplemented, except as may have been agreed to by the Underwriters, in each case in the form and substance as set forth in Exhibit B heretoRepresentative.
(b) The Company shall have requested Between the date hereof and caused Xxxxxx & Bird LLPthe Closing Date, tax counsel for the Companymarket price or marketability, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as initial offering prices set forth in Exhibit C hereto.the Official Statement, of the Notes shall not have been materially adversely affected in the reasonable judgment of the Representative (evidenced by a written notice to the County terminating the obligation of the Underwriters to accept delivery of and pay for the Notes) by reason of any of the following:
(c1) The Underwriters shall have received at legislation (including any amendment thereto) enacted or introduced in the Closing Time Congress or recommended for passage by the Option Closing TimePresident of the United States, as applicableor a decision rendered by a court established under Article III of the Constitution of the United States or by the United States Tax Court, the favorable opinion of Ropes & Gray LLPor an order, counsel for the Underwritersruling, dated the Closing Time regulation (final, temporary or the Option Closing Time, as applicable, and addressed to the Underwriters.proposed) or official statement issued or made:
(di) The Company, by or on behalf of the Company and United States Treasury Department, or by or on behalf of the Operating PartnershipInternal Revenue Service, and with the Manager shall have each furnished purpose or effect, directly or indirectly, of including in gross income for purposes of federal income taxation interest due with respect to the Underwriters certificates, signed Notes; or
(ii) by the Chief Executive Officer and the principal financial or accounting officer on behalf of the Company Securities and Exchange Commission, or any other governmental agency having jurisdiction over the Manager, all dated the Closing Time or the Option Closing Time, as applicablesubject matter thereof, to the effect that the signers of such certificates have carefully examined the Disclosure PackageNotes, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties obligations of the Company general character of the Notes, including any and all underlying arrangements, are not exempt from registration under the Operating Partnership or the ManagerSecurities Act of 1933, as applicableamended, in this Agreement are true and correct with or that the same effect as if made at Resolution is not exempt from qualification under the Closing Time or the Option Closing TimeTrust Indenture Act of 1939, as applicable, and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part that are respectively required to be performed or satisfied by them at or prior to the Closing Time or the Option Closing Time, as applicableamended;
(ii2) No stop order suspending the effectiveness declaration of war or engagement in or escalation of major military hostilities by the United States or the occurrence of any other national emergency or calamity relating to the effective operation of the Registration Statement government or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Actfinancial community in the United States;
(iii3) They have examined the Registration declaration of a general banking moratorium by federal, New York or California authorities, or the general suspension of trading on any national securities exchange;
(4) the imposition by the New York Stock Exchange, other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Notes, or obligations of the general character of the Notes, or securities generally, or the material increase of any such restrictions now in force, including those relating to the extension of credit by, or the charge to the net capital requirements of, Underwriters;
(5) an order, decree or injunction of any court of competent jurisdiction, or order, filing, regulation or official statement by the Securities and Exchange Commission, or any other governmental agency having jurisdiction over the subject matter thereof, issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Notes, including any or all underlying obligations, as contemplated hereby or by the Official Statement, is or would be in violation of the Disclosure Package Federal securities laws as amended and then in effect;
(6) any amendment to the Prospectus andfederal or California Constitution or action by any federal or California court, legislative body, regulatory body or other authority materially adversely affecting the tax status of the County, its property, income, securities (or interest thereon), the validity or enforceability of the Notes; or
(7) any event occurring, or information becoming known which, in their opinion, the Disclosure Package, as reasonable judgment of the Initial Sale TimeRepresentative, makes untrue in any material adverse respect any statement or information contained in the Registration Official Statement, or has the effect that the Official Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain contains any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth in the Disclosure Package or as described in such certificate, or in the ability of the Manager to perform its obligations under the Management Agreement.
(e) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the Representatives.
(f) The Company shall have requested and caused Xxxx Xxxxx LLP to have furnished to the Underwriters at the Execution Time a letter, dated as of the Execution Time, in form and substance heretofore approved by the Representatives.
(g) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(h) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading.;
(ic) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(j) The Company shall have applied for listing of the Notes on the NYSE.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter On or letters referred to in paragraph (e) of this Section 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(m) Prior prior to the Closing Time and each Option Closing TimeDate, the Company, the Operating Partnership and the Manager Representative shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(n) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities received two originals or certified copies of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(o) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(p) The Company shall have furnished to the Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicablefollowing documents, in the form and substance as set forth in Exhibit D. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be each case reasonably satisfactory in form and substance to the Representatives Representative:
(1) the Note Purchase Agreement;
(2) the Financing Certificate;
(3) the Resolution;
(4) an approving opinion, dated the Closing Date and counsel for addressed to the County, of Bond Counsel, in substantially the form attached as Appendix C to the Official Statement, together with a reliance letter of such counsel, dated the Closing Date and addressed to the Underwriters, this Agreement to the effect that such opinion addressed to the County may be relied upon by the Underwriters to the same extent as if such opinion was addressed to them, together with an additional supplemental opinion, dated the Closing Date and all obligations addressed to the Underwriters and the County to the effect that:
(i) the statements contained in the Official Statement under the captions “THE NOTES” (excluding information under the subheadings “Interfund Borrowing, Intrafund Borrowing and Cash Flow” and Cash Flow Projections”), “SUMMARY OF CERTAIN PROVISIONS OF THE RESOLUTION AND THE FINANCING CERTIFICATE” and “TAX EXEMPTION,” taken together, to the extent they purport to summarize the Notes, the Resolution, the Certificate and our opinion included as Appendix C to the Official Statement, present a fair and accurate summary of such documents and of such legal opinion for purposes of use in the Official Statement; and
(ii) the Notes are exempt from registration pursuant to the Securities Act of 1933, as amended, and the Resolution and the Financing Certificate are exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended.
(5) an opinion of Counsel to the County (“County Counsel”), dated as of the Underwriters hereunder may be canceled atClosing Date, or at any time prior to, the Closing Time and each Option Closing Time, as applicable by the Representatives (unless any such conditions have been waived in writing by the Representatives on or prior addressed to the Closing Time or the Option Closing TimeUnderwriters, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.effect that:
Appears in 1 contract
Samples: Note Purchase Agreement
Conditions to the Obligation of the Underwriters. The Underwriters' obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, Pass Through Certificates shall be subject to the accuracy of the representations and warranties on the part of the Company, the Operating Partnership and the Manager Company contained herein as of the date Execution Time and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing TimeDate, to the accuracy of the statements of the Company, the Operating Partnership and the Manager Company made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of their its obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates):conditions:
(a) The Company If the Registration Statement has not become effective prior to the Execution Time, the Registration Statement shall have requested and caused each become effective not later than (i) 5:00 p.m., New York City time, on the date of Xxxxxx & Bird LLP and Xxxxxxx LLPdetermination of the public offering price, counsel for if such determination occurred at or prior to 3:00 p.m., New York City time, on such date or (ii) 12:00 noon on the Companybusiness day following the day on which the public offering price was determined, if such determination occurred after 3:00 p.m., New York City time, on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to have furnished to Rule 424(b), the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicableFinal Prospectus, and addressed to the Underwritersany such supplement, in each case shall have been filed in the form manner and substance as set forth in Exhibit B heretowithin the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The representations and warranties of the Company contained in each Participation Agreement, [each Lease,] and the other Operative Agreements shall be true and correct in all material respects on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date, and the Company shall have requested and caused Xxxxxx & Bird LLP, tax counsel for the Company, delivered to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act mattersyou a certificate, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of Ropes & Gray LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificatesDate, signed in each case by the Chief Executive Officer President or any Vice President and the its principal financial or accounting officer of the Company and the Manager, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates certificate have carefully examined each Participation Agreement, [each Lease,] and the Disclosure Packageother Operative Agreements, Prospectus, any supplements or amendments to the Registration Statement Statement, the Preliminary Final Prospectus and this Agreement the Final Prospectus and that:
(i) The representations and warranties of the Company in each Participation Agreement, [each Lease,] and the Operating Partnership other Operative Agreements, to which the Company is, or the Manageris to be, as applicable, in this Agreement a party are true and correct with in all material respects on and as of the same effect Closing Date as if made at on and as of the Closing Time or the Option Closing Time, as applicable, and the Date.
(ii) The Company and the Operating Partnership have has complied with all the agreements and satisfied all the conditions on their its part that are respectively required to be performed or satisfied by them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Initial Sale Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth in the Disclosure Package or as described in such certificate, or in the ability of the Manager to perform its obligations under the Management Agreement.
(e) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the Representatives.
(f) The Company shall have requested and caused Xxxx Xxxxx LLP to have furnished to the Underwriters at the Execution Time a letter, dated as of the Execution Time, in form and substance heretofore approved by the Representatives.
(g) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(h) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives; (iii) the Registration Statement 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; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(i) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(j) The Company shall have applied for listing of the Notes on the NYSE.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(m) Prior to the Closing Time and each Option Closing Time, the Company, the Operating Partnership and the Manager shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(n) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(o) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(p) The Company shall have furnished to the Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit D. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable by the Representatives (unless any such conditions have been waived in writing by the Representatives on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given Date pursuant to the terms of the Basic Agreement, the Trust Supplement, each Participation Agreement, [each Lease,] and the other Operative Agreements, to which the Company in writing is, or by telephone or facsimile confirmed in writingis to be, a party.
(iii) Nothing has come to their attention that would lead either of them to believe that the Registration Statement
Appears in 1 contract
Samples: Underwriting Agreement (General American Transportation Corp /Ny/)
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes Shares at the Closing Time Date or on each Option Closing TimeDate, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company, the Operating Partnership and the Manager Company contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Applicable Time, the Closing Time Date and each Option Closing TimeDate, to the accuracy of the statements of the Company, the Operating Partnership and the Manager Company made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of their its obligations hereunder and to the following additional conditions at the Closing Time Date or on each Option Closing TimeDate, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates):
(a) The Company Underwriters shall have requested received an opinion and caused each negative assurance letter of Xxxxxx & Bird LLP and Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Company, to have furnished to the Underwriters at dated the Closing Time Date or the Option Closing TimeDate, as applicable, their respective opinions, dated covering such matters as the Closing Time or the Option Closing Time, as applicable, and addressed to the UnderwritersUnderwriters shall reasonably request, in each case in the form and substance as set forth in Exhibit B heretosatisfactory to the Underwriters.
(b) The Company shall have requested and caused Xxxxxx & Bird LLP, tax counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of Ropes & Gray LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company and the ManagerCompany, all dated the Closing Time Date or the Option Closing TimeDate, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time Date or the Option Closing TimeDate, as applicable, and the Company and the Operating Partnership have has complied with all the agreements and satisfied all the conditions on their its part that are respectively required to be performed or satisfied by them it at or prior to the Closing Time Date or the Option Closing TimeDate, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Initial Sale Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time Date or the Option Closing TimeDate, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager)Prospectus, there has been no material adverse change nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth in the Disclosure Package or as described in such certificate, or in the ability of the Manager to perform its obligations under the Management AgreementMaterial Adverse Effect.
(ec) The Company shall have requested and caused Deloitte & Touche Xxxxxxxx LLP to have furnished to the Underwriters, at the Execution Applicable Time, at the Closing Time Date and at each Option Closing TimeDate, an accountant’s “comfort letters” to the underwriters delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), dated respectively as of the Execution Applicable Time, the Closing Time Date and each Option Closing TimeDate, in form and substance heretofore approved by the RepresentativesRepresentative.
(f) The Company shall have requested and caused Xxxx Xxxxx LLP to have furnished to the Underwriters at the Execution Time a letter, dated as of the Execution Time, in form and substance heretofore approved by the Representatives.
(gd) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(he) Prior to the Closing Time Date and each Option Closing TimeDate: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or or, to the Company’s knowledge, threatened, by the Commission, and no suspension of the qualification of the Notes Shares for offering or sale in any jurisdiction, or the initiation or or, to the Company’s knowledge, threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativesRepresentative; (iii) the Registration Statement 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; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(if) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time Date shall have been made within the applicable time period prescribed for such filing by such Rule.
(jg) The Company shall have applied for listing “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Underwriter and certain stockholders, officers and directors of the Notes Company relating to sales and certain other disposition of shares of Stock or certain other securities, shall be delivered to the Underwriter on or before the date hereof and shall be in full force and effect on the NYSEClosing Date or the Option Closing Date, as the case may be.
(kh) FINRA The Shares to be delivered on the Closing Date or the Option Closing Date, as the case may be, shall not have raised any objection with respect been approved for listing on the Exchange, subject to the fairness and reasonableness notice of the underwriting terms and arrangementsissuance.
(li) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 6 5 delivered at the Closing Time Date or the Option Closing TimeDate, as applicable, from the letter delivered at the Execution Applicable Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreementwhole, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, make makes it impracticable impractical or inadvisable to proceed with the offering or delivery of the Notes Shares as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(mj) Prior to the Closing Time Date and each Option Closing TimeDate, the Company, the Operating Partnership and the Manager Company shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(nk) Subsequent to the Execution Applicable Time, if there are any debt securities of the Company, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ol) The Notes Shares shall be eligible for clearance and settlement through DTC and at the Closing Time Date and each Option Closing Time Date the Notes Shares shall be cleared and settled through DTC.
(p) The Company shall have furnished to the Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit D. . If any of the conditions specified in this Section 6 5 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time Date and each Option Closing TimeDate, as applicable applicable, by the Representatives Representative (unless any such conditions have been waived in writing by the Representatives Representative on or prior to the Closing Time Date or the Option Closing TimeDate, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, at 0000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX 00000, Attention: Xxxxxx Lung, at the Closing Date and each Option Closing Date.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes Offered Securities at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates):
(a) The Company shall have requested and caused each of Xxxxxx & Bird Cxxxxxxx Chance US LLP and Xxxxxxx Vxxxxxx LLP, counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in each case in the form and substance as set forth in Exhibit B hereto.
(b) The Company shall have requested and caused Xxxxxx & Bird Cxxxxxxx Chance US LLP, tax counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of Ropes Axxxxx & Gray Bird LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company and the Manager, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part that are respectively required to be performed or satisfied by them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Initial Sale Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth in the Disclosure Package or as described in such certificate, or in the ability of the Manager to perform its obligations under the Management Agreement.
(e) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the Representatives.
(f) The Company shall have requested and caused Xxxx Xxxxx LLP to have furnished to the Underwriters at the Execution Time a letter, dated as of the Execution Time, in form and substance heretofore approved by the Representatives.
(g) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(hg) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes Offered Securities for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives; (iii) the Registration Statement 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; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ih) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(ji) The Company shall have applied for listing of the Notes Offered Securities on the NYSE.
(kj) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lk) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 6 5 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, make makes it impracticable impractical or inadvisable to proceed with the offering or delivery of the Notes Offered Securities as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(ml) Prior to the Closing Time and each Option Closing Time, the Company, the Operating Partnership and the Manager shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(nm) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(on) The Notes Offered Securities shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes Offered Securities shall be cleared and settled through DTC.
(po) The Company shall have furnished to the Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit D. If any of the conditions specified in this Section 6 5 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable applicable, by the Representatives (unless any such conditions have been waived in writing by the Representatives on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates):
(a) The Company shall have requested and caused each of Xxxxxx & Bird Sidley Austin LLP and Xxxxxxx LLP, counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in each case in the form and substance as set forth in Exhibit B hereto.
(b) The Company shall have requested and caused Xxxxxx & Bird Xxxxxxxx Chance LLP, tax counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of Ropes Xxxxxx & Gray Bird LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company and the Manager, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part that are respectively required to be performed or satisfied by them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Initial Sale Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development Material Adverse Effect or event involving a prospective material adverse changeManager Material Adverse Effect, in the condition (financial or otherwise), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth in the Disclosure Package or as described in such certificate, or in the ability of the Manager to perform its obligations under the Management Agreementapplicable.
(e) The Company shall have requested and caused Deloitte & Touche LLP and Xxxxx LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the Representatives.
(f) The Company shall have requested and caused Xxxx Xxxxx LLP to have furnished to the Underwriters at the Execution Time a letter, dated as of the Execution Time, in form and substance heretofore approved by the Representatives.
(g) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(hg) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives; (iii) the Registration Statement 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; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ih) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(i) [Reserved.]
(j) The Company shall have applied for listing of the Notes on the NYSE.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, make makes it impracticable impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(m) The Company and the Trustee shall have executed and delivered the Fourth Supplemental Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(n) Prior to the Closing Time and each Option Closing Time, the Company, the Operating Partnership and the Manager shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(no) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(op) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(pq) The Company shall have furnished to the Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit D. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable applicable, by the Representatives (unless any such conditions have been waived in writing by the Representatives on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx & Bird LLP, counsel for the Underwriters, at 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx Xxxxxxx, at the Closing Time and each Option Closing Time.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates):
(a) The Company shall have requested and caused each of Xxxxxx & Bird Cxxxxxxx Chance US LLP and Xxxxxxx Vxxxxxx LLP, counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in each case in the form and substance as set forth in Exhibit B hereto.
(b) The Company shall have requested and caused Xxxxxx & Bird Cxxxxxxx Chance US LLP, tax counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of Ropes & Gray Mxxxx Xxxxx LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company and the Manager, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part that are respectively required to be performed or satisfied by them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Initial Sale Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth in the Disclosure Package or as described in such certificate, or in the ability of the Manager to perform its obligations under the Management Agreement.
(e) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the Representatives.
(f) The Company shall have requested and caused Xxxx Xxxxx LLP to have furnished to the Underwriters at the Execution Time a letter, dated as of the Execution Time, in form and substance heretofore approved by the Representatives.
(g) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(hg) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives; (iii) the Registration Statement 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; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ih) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(ji) The Company shall have applied for listing of the Notes on the NYSE.
(kj) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lk) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, make makes it impracticable impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(ml) Prior to the Closing Time and each Option Closing Time, the Company, the Operating Partnership and the Manager shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(nm) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(on) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(po) The Company shall have furnished to the Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit D. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable applicable, by the Representatives (unless any such conditions have been waived in writing by the Representatives on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company, the Operating Partnership and the Manager Company contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company, the Operating Partnership and the Manager Company made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of their its obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters Representative on or prior to such respective dates):
(a) The Company Representative shall have requested received an opinion and caused each negative assurance letter of Xxxxxx & Bird LLP and Xxxxxxx Xxxxxx LLP, counsel for the Company, to have furnished addressed to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, and addressed to covering such matters as the UnderwritersUnderwriters shall reasonably request, in each case in the form and substance as set forth in Exhibit B heretoto be agreed by the parties.
(b) The Company shall have requested and caused Xxxxxx & Bird LLP, tax counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of Ropes & Gray LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters Representative certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company and the ManagerCompany, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company and the Operating Partnership have has complied with all the agreements and satisfied all the conditions on their its part that are respectively required to be performed or satisfied by them it at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Initial Sale Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the date respective dates as of the most recent financial statements included which information is given in the Registration Statement, the Disclosure Package and the Prospectus Prospectus, there has been no change or development involving the business, management, properties, assets, rights, operations, condition (with respect to the certificate financial or otherwise) or prospects of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth whether or not arising in the Disclosure Package or as described in such certificateordinary course of business, or in the ability of the Manager that would cause a Material Adverse Effect to perform its obligations under the Management Agreementoccur.
(ec) The Company shall have requested and caused Deloitte & Touche LLP PricewaterhouseCoopers S.A. and PricewaterhouseCoopers Audit to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the RepresentativesRepresentative.
(f) The Company shall have requested and caused Xxxx Xxxxx LLP to have furnished to the Underwriters at the Execution Time a letter, dated as of the Execution Time, in form and substance heretofore approved by the Representatives.
(gd) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters Representative shall have objected in writing.
(he) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativesRepresentative; (iii) the Registration Statement 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; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(if) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(jg) [Reserved.]
(h) The Company shall have applied for listing of the Notes on the NYSE.
(ki) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lj) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 6 5 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreementwhole, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, make makes it impracticable impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(mk) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(l) Prior to the Closing Time and each Option Closing Time, the Company, the Operating Partnership and the Manager Company shall have furnished to the Underwriters Representative such further information, certificates and documents as the Underwriters may reasonably request.
(nm) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(on) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(po) The Company shall have furnished to the Underwriters Representatives a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit D. B. If any of the conditions specified in this Section 6 5 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable applicable, by the Representatives Representative (unless any such conditions have been waived in writing by the Representatives Representative on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of Xxxxxx, Xxxxx & Bockius LLP, counsel for the Underwriters, at 0000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX 00000, Attention: Xxxxxx Lung, at the Closing Time and each Option Closing Time.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The Underwriters’ obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall offered certificates will be subject to the accuracy in all material respects of the CRMSI’s representations and warranties on in this Agreement at the part date of the Company, the Operating Partnership this Agreement and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Timeclosing date, to the accuracy of the statements of the Company, the Operating Partnership and the Manager CRMSI made in any certificates officer’s certificate delivered pursuant to the provisions hereofthis Agreement, to the performance by the Company and the Operating Partnership CRMSI of their its obligations hereunder under this Agreement, and to the following additional conditions at on the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates):closing date:
(a) The Company shall have requested and caused each of Xxxxxx & Bird LLP and Xxxxxxx LLP, counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in each case in the form and substance as set forth in Exhibit B hereto.
(b) The Company shall have requested and caused Xxxxxx & Bird LLP, tax counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of Ropes & Gray LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company and the Manager, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part that are respectively required to be performed or satisfied by them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose instituted and pending or, to CRMSI’s knowledge, threatened by the Commission.
(b) CRMSI has delivered to the Representative a certificate of CRMSI, dated the closing date and signed by the President, Senior Vice President, Vice President or any post-an Assistant Vice President of CRMSI, to the effect that the signer of the certificate has examined the Registration Statement, the Prospectus and this Agreement and that:
(i) CRMSI’s representations and warranties in this Agreement are true and correct in all material respects on the closing date with the same effect as if made on the closing date, and CRMSI has complied with all agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the closing date; and
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose instituted and pending or, to such officer’s knowledge, threatened as of the closing date.
(c) CRMSI has delivered to the Representative one or more opinions, dated the closing date, of [Name], [Title], of Citigroup Inc., to the effect that:
(i) Each of CRMSI and CFMC is a validly existing corporation in good standing under the laws of the State of Delaware and the State of New York, respectively, with corporate power and authority under such laws to own its properties and assets and conduct its business as described in the Prospectus;
(ii) Citibank, N.A. has been duly chartered and is validly existing as a national banking association in good standing under the laws of the United States;
(iii) The offered certificates have been duly authorized and, when executed and authenticated in accordance with the terms of the Pooling Agreement and delivered to and paid for by the Underwriters pursuant to this Agreement, will be validly issued and outstanding and enforceable in accordance with their terms (except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors’ rights and by general principles of equity) and will be entitled to the benefits provided by the Pooling Agreement;
(iv) Assuming that the offered [class A and class M] offered certificates are rated at the time of issuance in one of the two highest rating categories by a nationally recognized statistical rating organization, each such offered certificate at such time will be a “mortgage related security,” as defined in section 3(a)(41) of the Exchange Act;
(v) The Pooling Agreement has been duly authorized, executed and delivered by CRMSI, CFMC, as Servicer, and Citibank, N.A., as Paying Agent, Transfer Agent and Certificate Registrar and, assuming valid execution thereof by U.S. Bank National Association, as Trustee, constitutes a valid and legally binding agreement of CRMSI, CFMC, and Citibank, N.A., enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors’ rights and by general principles of equity;
(vi) The Pooling Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and the Trust Fund (as defined in the Pooling Agreement) is not required to be registered under the Investment Company Act of 1940, as amended;
(vii) Each originator affiliated with CRMSI is a New York corporation or a federal savings bank, as the case may be, validly existing under applicable law, with full power and authority under such law to own its properties and conduct its business as described in the Prospectus;
(viii) The mortgage loan purchase agreement relating to the mortgage loans has been duly authorized, executed and delivered by CRMSI and each originator and constitutes the valid and legally binding obligation of CRMSI and each such originator, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors’ rights and by general principles of equity;
(ix) This Agreement has been duly authorized, executed and delivered by each of CRMSI and CTB;
(x) The Registration Statement is effective amendment thereto under the Securities Act, and, to the best knowledge of such counsel:
(A) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or to such counsel’s knowledge, have been threatened under the Securities Act;.
(iiiB) They have examined Each of the Registration StatementStatement at its effective date and the closing date, the Disclosure Package and the Prospectus andat its date and the closing date (in each case, with the exception of any information incorporated by reference therein, any numerical, financial, statistical or quantitative data and any statements regarding tax or ERISA matters) appeared on its face to be appropriately responsive in their opinion, all material respects to the Disclosure Package, as requirements of the Initial Sale Time, Securities Act and the applicable rules and regulations of the Commission thereunder.
(C) The Pooling Agreement and the offered certificates conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus. Such opinion may express its reliance as to factual matters on the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement and the Pooling Agreement. Such opinion may assume the due authorization, execution and delivery of the instruments and documents referred to therein by the parties thereto other than CRMSI, CFMC, Citibank, N.A., CTB and the originators. Such opinion may be qualified as an opinion only on the General Corporation Law of the State of Delaware, the laws of each state in which the writer of the opinion is admitted to practice law, and the federal law of the United States.
(d) CRMSI has delivered to the Representative a letter, dated the closing date, of [Name], [Title], of Citigroup Inc., to the effect that in the course of such counsel’s review of the Registration Statement and the Prospectus and discussion of the same with certain officers of CRMSI and the originators and their auditors, no facts came to the attention of such counsel that led such counsel to believe that the Registration Statement as of their dates and its effective date or the closing date, or the Prospectus as of the Closing Time its date or the Option Closing Timeclosing date, as applicable, did not and do not contain contained any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth in the Disclosure Package or as described in such certificate, or in the ability of the Manager to perform its obligations under the Management Agreement.
(e) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the Representatives.
(f) The Company shall have requested and caused Xxxx Xxxxx LLP to have furnished to the Underwriters at the Execution Time a letter, dated as of the Execution Time, in form and substance heretofore approved by the Representatives.
(g) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(h) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives; (iii) the Registration Statement shall not contain an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that such counsel need express no view as to any information incorporated by reference or any financial, numerical, statistical or quantitative data in the Registration Statement or the Prospectus.
(e) CRMSI has delivered to the Representative an opinion, dated the closing date, of [name of counsel], special counsel to CRMSI, to the effect that the statements in the Prospectus under the headings “Core prospectus–Taxation of certificate holders,” “ Core prospectus–Taxation of the Trust,” “Core prospectus–ERISA considerations”, “Prospectus supplement—ERISA considerations” and “Prospectus supplement—Federal income tax consequences,” are, to the extent such statements constitute matters of law or legal conclusions with respect thereto, accurate in all material respects.
(f) The Representative has received from [name of counsel], counsel for the Underwriters, such opinion or opinions, dated the closing date, with respect to the issuance and sale of the offered certificates, the Registration Statement and the Prospectus, and such other related matters as the Underwriters may reasonably request.
(g) [Auditors] have furnished to the Underwriters a letter, dated the closing date, in form and substance satisfactory to the Underwriters, stating in effect that they have performed certain specified procedures, agreed upon among [Auditors], CRMSI and the Representative, as a result of which they have determined that the information of an accounting, financial or statistical nature with respect to “static pool information” contained on CRMSI’s website at xxx.xxxxxxxxxxxxxxx.xxx relating to REMIC pass-through certificates issued after January 1, 2006 and included or referred to in the Prospectus under Rule 312 of the Commission’s Regulation S-T, agrees with the accounting records of the originators, excluding any questions of legal interpretation.
(h) [Auditors] have furnished to the Underwriters a letter, dated the closing date, in form and substance satisfactory to the Underwriters, stating in effect that:
(i) They have performed certain specified procedures, agreed upon among [Auditors], CRMSI and the Representative, as a result of which they have determined that the information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the originators and which is obtained from an analysis of a sample of the mortgage loans) set forth in the Prospectus under the caption “Prospectus supplement—Summary—Series overview—the mortgage loans at [Month] 1, 200[*] (the cut-off date)” and in the detailed description relating to such prospectus supplement and the mortgage loans agrees with the accounting records of the originators, excluding any questions of legal interpretation.
(ii) They have compared the data contained in a data sheet or computer tape prepared by CFMC for the mortgage loans to information contained in the mortgage loan files furnished by the originators and in such other sources as will be specified by them, based on an appropriate sampling thereof, and found such data and information to be in agreement, unless otherwise noted in such letter.
(i) All filings If there is more than one class of offered certificates, [Auditors] have furnished to the Underwriters a letter, dated the date of the Prospectus, in form and substance satisfactory to the Underwriters, stating in effect that:
(i) Using the assumptions and methodology used by CRMSI (which include and do not conflict with any assumptions and methodology set forth in the Prospectus), all of which will be described by reference in such letter, they have recalculated the percentages and weighted average lives [and weighted averages lives to call] set forth in the Prospectus in the tables relating to the “Prospectus supplement—Principal balance as percent of initial principal balance” for each class of offered certificates at certain percentages of the prepayment model to be set forth in the Prospectus, compared the results of their calculations to the corresponding items in the respective table and found each such percentage and weighted average life set forth in each such table to be in agreement with the Commission required respective results of such calculations.
(ii) Using the assumptions and methodology prescribed in the Prospectus, they have recalculated, for each distribution day (as defined in the Prospectus), the aggregate of the amount of cash to be on deposit in the Trust on the determination day immediately preceding such distribution day and found that such aggregate amount equals or exceeds the aggregate amount of interest and distributions in reduction of principal balance that is distributable on the offered certificates on the following distribution day, as recalculated by Rule 424 under them.
(iii) Using the Securities Act assumptions and methodology prescribed in the Pooling Agreement and the Prospectus, they have recomputed the last distribution day for each class of offered certificates and found such dates to be in agreement with those set forth in the Prospectus.
(iv) If one or more classes of offered certificates will be entitled to receive distributions in respect of interest at other than a fixed rate or distributions in reduction of principal balance according to a schedule of planned or targeted balances, or have been filed other characteristics which give rise to the use of tables in the Prospectus reflecting yield or cash flow, such letters will also set forth such other statements as are customarily set forth by [Auditors] in such letters with respect to such classes.
(v) Using the Closing Time shall assumptions and methodology used by CRMSI set forth in the Prospectus, all of which will be described by reference in such letter, they have been made within recalculated the applicable time period prescribed for percentages set forth in the Prospectus in the tables entitled “Prospectus supplement—Sensitivity of Certificates to prepayment—[Sensitivity of the class A-[*] Certificates—Pre-tax yields” and “—[Yields on class B Certificates—Pre-tax yield to maturity on class B Certificates]” of [classes A-[*] and B], compared the results of their calculations to the corresponding items in such filing by table and found each such Rulepercentage set forth in such table to be in agreement with the results of such calculations.
(j) The Company shall have applied for listing of the Notes on the NYSE.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto)date hereof, there shall will not have been (i) occurred any material adverse change specified in the letter change, or letters referred to in paragraph (e) of this Section 6 delivered at the Closing Time or the Option Closing Timeany development involving a prospective change, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in affecting the Registration Statementbusiness or properties of CRMSI which the Representative concludes, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, isafter consultation with CRMSI, in the sole judgment of the RepresentativesRepresentative, materially impairs the investment quality of the offered certificates so as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Notes offered certificates as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto)Prospectus.
(mk) Prior to The offered certificates have been rated at least the Closing Time rating or ratings specified in Schedule I by the rating agency or agencies specified in Schedule I and each Option Closing Time, the Company, the Operating Partnership and the Manager shall such ratings will not have been rescinded or placed under review.
(l) CRMSI has furnished to the Underwriters Representative such further information, certificates and documents as the Underwriters Representative may reasonably request.
(n) Subsequent have requested not less than three full business days prior to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(o) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(p) The Company shall have furnished to the Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit D. closing date. If any of the conditions specified in this Section 6 shall section 8 are not have been fulfilled in all material respects when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall are not be in all material respects reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwritersits counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable closing date by the Representatives (unless any such conditions have been waived in writing by the Representatives on or prior to the Closing Time or the Option Closing Time, as applicable)Representative. Notice of such cancellation shall will be given to the Company CRMSI in writing writing, or by telephone or facsimile telegraph confirmed in writing.
Appears in 1 contract
Samples: Underwriting Agreement (Citicorp Residential Mortgage Securities, Inc.)
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates):
(a) The Company shall have requested and caused each of Xxxxxx & Bird Sidley Austin LLP and Xxxxxxx Vxxxxxx LLP, counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in each case in the form and substance as set forth in Exhibit B hereto.
(b) The Company shall have requested and caused Xxxxxx & Bird Cxxxxxxx Chance LLP, tax counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of Ropes Axxxxx & Gray Bird LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company and the Manager, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part that are respectively required to be performed or satisfied by them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Initial Sale Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development Material Adverse Effect or event involving a prospective material adverse changeManager Material Adverse Effect, in the condition (financial or otherwise), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth in the Disclosure Package or as described in such certificate, or in the ability of the Manager to perform its obligations under the Management Agreementapplicable.
(e) The Company shall have requested and caused Deloitte & Touche LLP and Cxxxx LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the Representatives.
(f) The Company shall have requested and caused Xxxx Xxxxx LLP to have furnished to the Underwriters at the Execution Time a letter, dated as of the Execution Time, in form and substance heretofore approved by the Representatives.
(g) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(hg) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives; (iii) the Registration Statement 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; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ih) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(i) [Reserved.]
(j) The Company shall have applied for listing of the Notes on the NYSE.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, make makes it impracticable impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(m) [Reserved.]
(n) Prior to the Closing Time and each Option Closing Time, the Company, the Operating Partnership and the Manager shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(no) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(op) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(pq) The Company shall have furnished to the Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit D. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable applicable, by the Representatives (unless any such conditions have been waived in writing by the Representatives on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Axxxxx & Bird LLP, counsel for the Underwriters, at 90 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Mxxxxxx Xxxxxxx, at the Closing Time and each Option Closing Time.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates):
(a) The Company shall have requested and caused each of Xxxxxx & Bird Xxxxxxxx Chance US LLP and Xxxxxxx LLP, counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in each case in the form and substance as set forth in Exhibit B heretoC hereto and to such further effect as the Representatives may reasonably request.
(b) The Company shall have requested and caused Xxxxxx & Bird LLP, tax counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of Ropes Xxxxxxxx & Gray Xxxxx LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(dc) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company and the Manager, all all, dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part that are respectively required to be performed or satisfied by them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Initial Sale Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development Material Adverse Effect or event involving a prospective material adverse changeManager Material Adverse Effect, in the condition (financial or otherwise), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth in the Disclosure Package or as described in such certificate, or in the ability of the Manager to perform its obligations under the Management Agreementapplicable.
(ed) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the Representatives.
(fe) The Company Representatives shall have requested and caused Xxxx Xxxxx LLP to have furnished to received lock-up agreements, signed by the Underwriters at the Execution Time a letter, dated as of the Execution Timepersons listed on Schedule IV hereto, in the form of Exhibit B attached hereto, and substance heretofore approved by the Representativessuch letter agreements shall be in full force and effect.
(gf) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(hg) Prior to the Closing Time and each Option Closing Time: Time (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes Securities for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the Representatives; (iii) the Registration Statement 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; and (iv) the Registration Statement, Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ih) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(i) The Conversion Shares shall have been approved for listing on the NYSE.
(j) The Company shall have applied for listing of the Notes on the NYSE.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (ed) of this Section 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, make makes it impracticable impractical or inadvisable to proceed with the offering or delivery of the Notes Securities as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(m) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(n) Prior to the Closing Time and each Option Closing Time, the Company, the Operating Partnership and the Manager shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(no) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(op) The Notes Securities shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes Securities shall be cleared and settled through DTC.
(pq) The Company shall have furnished to the Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit D. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable applicable, by the Representatives (unless any such conditions have been waived in writing by the Representatives on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxxx & Xxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxxx and Xxx Xxxxxxxxxxx, at the Closing Time and each Option Closing Time.
Appears in 1 contract
Samples: Underwriting Agreement (Sutherland Asset Management Corp)
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time Date or on each Option Closing TimeDate, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company, the Operating Partnership and the Manager Company contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time Date and each Option Closing TimeDate, to the accuracy of the statements of the Company, the Operating Partnership and the Manager Company made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of their its obligations hereunder and to the following additional conditions at the Closing Time Date or on each Option Closing TimeDate, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates):
(a) The Company Underwriters shall have requested received an opinion and caused each negative assurance letter of Xxxxxx Faegre Drinker Bxxxxx & Bird LLP and Xxxxxxx Rxxxx LLP, counsel for the Company, to have furnished to the Underwriters at dated the Closing Time Date or the Option Closing TimeDate, as applicable, their respective opinions, dated covering such matters as the Closing Time or the Option Closing Time, as applicable, and addressed to the UnderwritersUnderwriters shall reasonably request, in each case in the form and substance as set forth in Exhibit B heretosatisfactory to the Underwriters.
(b) The Company shall have requested and caused Xxxxxx & Bird LLP, tax counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Timean opinion and negative assurance letter of Mxxxxx, as applicable, the favorable opinion of Ropes Xxxxx & Gray Bockius LLP, counsel for the Underwriters, dated the Closing Time Date or the Option Closing TimeDate, as applicable, covering such matters as the Underwriters shall reasonably request, in each case in the form and addressed substance satisfactory to the Underwriters.
(dc) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company and the ManagerCompany, all dated the Closing Time Date or the Option Closing TimeDate, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time Date or the Option Closing TimeDate, as applicable, and the Company and the Operating Partnership have has complied with all the agreements and satisfied all the conditions on their its part that are respectively required to be performed or satisfied by them it at or prior to the Closing Time Date or the Option Closing TimeDate, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Initial Sale Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time Date or the Option Closing TimeDate, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager)Prospectus, there has been no material adverse change nor any development or event involving Material Adverse Effect.
(d) The Company shall have received from the Chief Executive Officers and Chief Financial Officer, at the Initial Sale Time, at the Closing Date and at each Option Closing Date, a prospective material adverse changecertificate confirming certain matters, including but are not limited to, the accuracy and validity of certain financial information disclosed in the Company’s filings with the SEC, in form and substance heretofore approved by the condition Representative (financial or otherwisethe “CFO Certificate”), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth in the Disclosure Package or as described in such certificate, or in the ability of the Manager to perform its obligations under the Management Agreement.
(e) The Company shall have requested and caused received from Deloitte & Touche LLP to have furnished to the UnderwritersLLP, at the Execution Initial Sale Time, at the Closing Time Date and at each Option Closing TimeDate, lettersan accountant’s “comfort letter” to the Underwriters delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), dated respectively as of the Execution Initial Sale Time, the Closing Time Date and each Option Closing TimeDate, in form and substance heretofore approved by the RepresentativesRepresentative.
(f) The Company shall have requested received from Mazars USA LLP, at the Initial Sale Time, at the Closing Date and caused Xxxx Xxxxx LLP to have furnished at each Option Closing Date, an accountant’s “comfort letter” to the Underwriters at the Execution Time a letterunderwriters delivered according to applicable U.S. or non-U.S. audit standards, dated respectively as of the Execution Initial Sale Time, the Closing Date and each Option Closing Date, in form and substance heretofore approved by the RepresentativesRepresentative.
(g) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(h) Prior to the Closing Time Date and each Option Closing TimeDate: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or or, to the Company’s knowledge, threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or or, to the Company’s knowledge, threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativesRepresentative; (iii) the Registration Statement 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; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(i) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time Date shall have been made within the applicable time period prescribed for such filing by such Rule.
(j) The Company Notes to be delivered on the Closing Date or the Option Closing Date, as the case may be, shall have applied been approved for listing on Nasdaq, subject to notice of the Notes on the NYSEissuance.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(l) Subsequent to the Execution Initial Sale Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (ec) of this Section 6 5 delivered at the Closing Time Date or the Option Closing TimeDate, as applicable, from the letter delivered at the Execution Initial Sale Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreementwhole, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, make makes it impracticable impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(ml) Prior to the Closing Time Date and each Option Closing TimeDate, the Company, the Operating Partnership and the Manager Company shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(nm) Subsequent to the Execution Initial Sale Time, if there are any debt securities of the Company, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(on) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time Date and each Option Closing Time Date the Notes shall be cleared and settled through DTC.
(po) The Company shall have furnished executed and delivered the Sale and Purchase Agreement, dated September 22, 2021, relating to the Underwriters a certificate, signed by the principal financial or accounting officer acquisition and purchase of all of the Company, dated issued and outstanding equity interests of 123tv Invest GmbH and 123tv Holding GmbH and the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit D. related Vendor Loan Agreement. If any of the conditions specified in this Section 6 5 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time Date and each Option Closing TimeDate, as applicable applicable, by the Representatives Representative (unless any such conditions have been waived in writing by the Representatives Representative on or prior to the Closing Time Date or the Option Closing TimeDate, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of Mxxxxx, Xxxxx & Bxxxxxx LLP, counsel for the Underwriters, at 1000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX 00000, Attention: Axxxxx Lung, at the Closing Date and each Option Closing Date.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option the Closing Time, to the accuracy of the statements of the Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates):
(a) The Company shall have requested and caused each of Xxxxxx Axxxxx & Bird LLP and Xxxxxxx Vxxxxxx LLP, counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in each case in the form and substance as set forth in Exhibit B hereto.
(b) The Company shall have requested and caused Xxxxxx Axxxxx & Bird LLP, tax counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of Ropes & Gray Gxxx LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(d) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company and the Manager, all dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part that are respectively required to be performed or satisfied by them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Initial Sale Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth in the Disclosure Package or as described in such certificate, or in the ability of the Manager to perform its obligations under the Management Agreement.
(e) The Company shall have requested and caused Deloitte & Touche LLP, RSM US LLP and KPMG LLP to have furnished to the Underwriters, at the Execution Time, Time and at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option the Closing Time, in form and substance heretofore approved by the RepresentativesRepresentative.
(f) The Company shall have requested and caused Xxxx Xxxxx LLP to have furnished to the Underwriters at the Execution Time a letter, dated as of the Execution Time, in form and substance heretofore approved by the Representatives.
(g) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(hg) Prior to the Closing Time and each Option Closing Time: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativesRepresentative; (iii) the Registration Statement 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; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ih) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(j) The Company shall have applied for listing of the Notes on the NYSE.
(ki) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lj) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (e) of this Section 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, make it impracticable impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(mk) Prior to the Closing Time and each Option Closing Time, the Company, the Operating Partnership and the Manager shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(nl) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(om) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(pn) The Company shall have furnished to the Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit D. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable by the Representatives Representative (unless any such conditions have been waived in writing by the Representatives Representative on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes Shares at the Closing Time Date or on each Option Closing TimeDate, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company, the Operating Partnership and the Manager Company contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Applicable Time, the Closing Time Date and each Option Closing TimeDate, to the accuracy of the statements of the Company, the Operating Partnership and the Manager Company made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of their its obligations hereunder and to the following additional conditions at the Closing Time Date or on each Option Closing TimeDate, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates):
(a) The Company Underwriters shall have requested received an opinion and caused each negative assurance letter of Xxxxxx Faegre Drinker Bxxxxx & Bird LLP and Xxxxxxx Rxxxx LLP, counsel for the Company, to have furnished to the Underwriters at dated the Closing Time Date or the Option Closing TimeDate, as applicable, their respective opinions, dated covering such matters as the Closing Time or the Option Closing Time, as applicable, and addressed to the UnderwritersUnderwriters shall reasonably request, in each case in the form and substance as set forth in Exhibit B heretosatisfactory to the Underwriters.
(b) The Company shall have requested and caused Xxxxxx & Bird LLP, tax counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Timean opinion and negative assurance letter of Mxxxxx, as applicable, the favorable opinion of Ropes Xxxxx & Gray Bockius LLP, counsel for the Underwriters, dated the Closing Time Date or the Option Closing TimeDate, as applicable, covering such matters as the Underwriters shall reasonably request, in each case in the form and addressed substance satisfactory to the Underwriters.
(dc) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company and the ManagerCompany, all dated the Closing Time Date or the Option Closing TimeDate, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time Date or the Option Closing TimeDate, as applicable, and the Company and the Operating Partnership have has complied with all the agreements and satisfied all the conditions on their its part that are respectively required to be performed or satisfied by them it at or prior to the Closing Time Date or the Option Closing TimeDate, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or or, to the best of their knowledge, threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Initial Sale Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time Date or the Option Closing TimeDate, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager)Prospectus, there has been no material adverse change nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth in the Disclosure Package or as described in such certificate, or in the ability of the Manager to perform its obligations under the Management AgreementMaterial Adverse Effect.
(ed) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Applicable Time, at the Closing Time Date and at each Option Closing TimeDate, lettersan accountant’s “comfort letter” to the underwriters delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), dated respectively as of the Execution Applicable Time, the Closing Time Date and each Option Closing TimeDate, in form and substance heretofore approved by the RepresentativesRepresentative.
(f) The Company shall have requested and caused Xxxx Xxxxx LLP to have furnished to the Underwriters at the Execution Time a letter, dated as of the Execution Time, in form and substance heretofore approved by the Representatives.
(ge) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(hf) Prior to the Closing Time Date and each Option Closing TimeDate: (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or or, to the Company’s knowledge, threatened, by the Commission, and no suspension of the qualification of the Notes Shares for offering or sale in any jurisdiction, or the initiation or or, to the Company’s knowledge, threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativesRepresentative; (iii) the Registration Statement 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; and (iv) the Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ig) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time Date shall have been made within the applicable time period prescribed for such filing by such Rule.
(jh) The Company shall have applied for listing “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Underwriter and certain stockholders, officers and directors of the Notes Company (the “Lock-Up Agreements”) relating to sales and certain other dispositions of shares of Common Stock or certain other securities, shall be delivered to the Representative on or before the date hereof and shall be in full force and effect on the NYSEClosing Date or the Option Closing Date, as the case may be.
(ki) FINRA The Shares to be delivered on the Closing Date or the Option Closing Date, as the case may be, shall not have raised any objection with respect been approved for listing on Nasdaq, subject to the fairness and reasonableness notice of the underwriting terms and arrangementsissuance.
(lj) Subsequent to the Execution Applicable Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (ec) of this Section 6 5 delivered at the Closing Time Date or the Option Closing TimeDate, as applicable, from the letter delivered at the Execution Applicable Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreementwhole, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, make makes it impracticable impractical or inadvisable to proceed with the offering or delivery of the Notes Shares as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(mk) Prior to the Closing Time Date and each Option Closing TimeDate, the Company, the Operating Partnership and the Manager Company shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(nl) Subsequent to the Execution Applicable Time, if there are any debt securities of the Company, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(om) The Notes Shares shall be eligible for clearance and settlement through DTC and at the Closing Time Date and each Option Closing Time Date the Notes Shares shall be cleared and settled through DTC.
(p) The Company shall have furnished to the Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit D. . If any of the conditions specified in this Section 6 5 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time Date and each Option Closing TimeDate, as applicable applicable, by the Representatives Representative (unless any such conditions have been waived in writing by the Representatives Representative on or prior to the Closing Time Date or the Option Closing TimeDate, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of Mxxxxx, Xxxxx & Bxxxxxx LLP, counsel for the Underwriters, at 1000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX 00000, Attention: Axxxxx Lung, at the Closing Date and each Option Closing Date.
Appears in 1 contract
Conditions to the Obligation of the Underwriters. The obligation of the Underwriters to purchase the Notes at the Closing Time or on each Option Closing Time, as applicable, shall be subject to the accuracy of the representations and warranties on the part of the Company, the Operating Partnership and the Manager contained herein as of the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”), the Initial Sale Time, the Closing Time and each Option Closing Time, to the accuracy of the statements of the Company, the Operating Partnership and the Manager made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Operating Partnership of their obligations hereunder and to the following additional conditions at the Closing Time or on each Option Closing Time, as applicable (except to the extent that any such conditions may have been waived in writing by the Underwriters on or prior to such respective dates):
(a) The Company shall have requested and caused each of Xxxxxx & Bird Xxxxxxxx Chance US LLP and Xxxxxxx LLP, counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, their respective opinions, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in each case in the form and substance as set forth in Exhibit B heretohereto and to such further effect as the Representative may reasonably request.
(b) The Company shall have requested and caused Xxxxxx & Bird LLP, tax counsel for the Company, to have furnished to the Underwriters at the Closing Time or the Option Closing Time, as applicable, its opinions on certain tax and Investment Company Act matters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters, in the form and substance as set forth in Exhibit C hereto.
(c) The Underwriters shall have received at the Closing Time or the Option Closing Time, as applicable, the favorable opinion of Ropes Xxxxxxxx & Gray Xxxxx LLP, counsel for the Underwriters, dated the Closing Time or the Option Closing Time, as applicable, and addressed to the Underwriters.
(dc) The Company, on behalf of the Company and the Operating Partnership, and the Manager shall have each furnished to the Underwriters certificates, signed by the Chief Executive Officer and the principal financial or accounting officer of the Company and the Manager, all all, dated the Closing Time or the Option Closing Time, as applicable, to the effect that the signers of such certificates have carefully examined the Disclosure Package, Prospectus, any supplements or amendments to the Registration Statement and this Agreement and that:
(i) The representations and warranties of the Company and the Operating Partnership or the Manager, as applicable, in this Agreement are true and correct with the same effect as if made at the Closing Time or the Option Closing Time, as applicable, and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part that are respectively required to be performed or satisfied by them at or prior to the Closing Time or the Option Closing Time, as applicable;
(ii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act;
(iii) They have examined the Registration Statement, the Disclosure Package and the Prospectus and, in their opinion, the Disclosure Package, as of the Initial Sale Applicable Time, the Registration Statement and the Prospectus, as of their dates and as of the Closing Time or the Option Closing Time, as applicable, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(iv) Since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Company and the Operating Partnership) and since the dates of the Registration Statement, the Disclosure Package and the Prospectus (with respect to the certificate of the Manager), there has been no material adverse change nor any development Material Adverse Effect or event involving a prospective material adverse changeManager Material Adverse Effect, in the condition (financial or otherwise), results of operations, business, or properties of the Company or its Subsidiaries taken as a whole, except as set forth in the Disclosure Package or as described in such certificate, or in the ability of the Manager to perform its obligations under the Management Agreementapplicable.
(ed) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Underwriters, at the Execution Time, at the Closing Time and at each Option Closing Time, letters, dated respectively as of the Execution Time, the Closing Time and each Option Closing Time, in form and substance heretofore approved by the RepresentativesRepresentative.
(f) The Company shall have requested and caused Xxxx Xxxxx LLP to have furnished to the Underwriters at the Execution Time a letter, dated as of the Execution Time, in form and substance heretofore approved by the Representatives.
(ge) No amendment or supplement to the Registration Statement, the Prospectus or any document in the Disclosure Package shall have been filed to which the Underwriters shall have objected in writing.
(hf) Prior to the Closing Time and each Option Closing Time: Time (i) no stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of the Prospectus or any document in the Disclosure Package shall have been issued, and no proceedings for such purpose shall have been initiated or threatened, by the Commission, and no suspension of the qualification of the Notes for offering or sale in any jurisdiction, or the initiation or threatening of any proceedings for any of such purposes, has occurred; (ii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of the RepresentativesRepresentative; (iii) the Registration Statement 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; and (iv) the Registration Statement, Prospectus and the Disclosure Package shall not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ig) All filings with the Commission required by Rule 424 under the Securities Act to have been filed by the Closing Time shall have been made within the applicable time period prescribed for such filing by such Rule.
(jh) [Reserved.]
(i) The Company shall have applied for listing of the Notes on the NYSE.
(kj) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
(lk) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Disclosure Package (exclusive of any supplement thereto), the Prospectus and the Registration Statement (exclusive of any supplement thereto), there shall not have been (i) any material adverse change specified in the letter or letters referred to in paragraph (ed) of this Section 6 delivered at the Closing Time or the Option Closing Time, as applicable, from the letter delivered at the Execution Time or (ii) any material adverse change in the business, management, financial position, results of operations or prospects of the Company and its Subsidiaries taken as a whole or in the ability of the Manager to perform its obligations under the Management Agreement, whether or not arising from transactions in the ordinary course of business except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the RepresentativesRepresentative, make makes it impracticable impractical or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any supplement thereto).
(l) The Company and the Trustee shall have executed and delivered the Indenture in form and substance satisfactory to the Underwriters and the Underwriters shall have received copies thereof.
(m) Prior to the Closing Time and each Option Closing Time, the Company, the Operating Partnership and the Manager shall have furnished to the Underwriters such further information, certificates and documents as the Underwriters may reasonably request.
(n) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any debt securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(o) The Notes shall be eligible for clearance and settlement through DTC and at the Closing Time and each Option Closing Time the Notes shall be cleared and settled through DTC.
(p) The Company shall have furnished to the Underwriters a certificate, signed by the principal financial or accounting officer of the Company, dated the Closing Time or the Option Closing Time, as applicable, in the form and substance as set forth in Exhibit D. C. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided for in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Representatives Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Time and each Option Closing Time, as applicable applicable, by the Representatives Representative (unless any such conditions have been waived in writing by the Representatives Representative on or prior to the Closing Time or the Option Closing Time, as applicable). Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxxx & Xxxxx LLP, counsel for the Underwriters, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxxx and Xxx Xxxxxxxxxxx, at the Closing Time and each Option Closing Time.
Appears in 1 contract
Samples: Underwriting Agreement (Sutherland Asset Management Corp)
